No Transgender Case Rehearing; Dissent Urges SCOTUS Review

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By Melissa Heelan Stanzione

June 1 — The reinstatement of a transgender boy's Title IX claims over bathroom access at his high school won't be reviewed by the en banc U.S. Court of Appeals for the Fourth Circuit ( G.G. v. Gloucester Cty. Sch. Bd., 4th Cir., No. 15-2056, reh'g denied 5/31/16 ).

Judge Paul V. Niemeyer dissented from the denial and urged the parties to seek U.S. Supreme Court review, saying that time “is of the essence.”

“It's not uncommon for dissenting judges to encourage review by the Supreme Court when the appellate court does not take a case en banc,” Joshua A. Block, an attorney with the American Civil Liberties Union who represented the boy, told Bloomberg BNA in a June 1 e-mail.

But it would be “extremely unusual for the Supreme Court to grant review” here, he said.

“The Supreme Court usually waits until a final judgment is issued and it usually waits until there is a disagreement among the courts of appeals before granting certiorari,” Block said.

Neither of these factors is present in this case, he said. The Fourth Circuit panel didn't rule on the merits of the boy's claims (84 U.S.L.W. 1539, 4/21/16).

Split on Circuit Split

But Matt Sharp, an attorney for Alliance Defending Freedom, Atlanta, told Bloomberg BNA June 1 he was hopeful the Supreme Court may grant review “sooner rather than later.”

“I do think we have a circuit split,” Sharp said.

The group filed an amicus brief in support of The Family Foundation of Virginia.

Sharp said the Ninth Circuit has ruled that Title IX doesn't allow a student to use restrooms of the opposite sex, in Kastl v. Maricopa Cty. Cmty. Coll. Dist., 325 F. App'x 492, 2009 BL 79690 (9th Cir. 2009).

4th Cir. Reinstated Claims

The Fourth Circuit in April reinstated the Title IX claims of the boy in this case, but didn't rule on their merits, in G.G. v. Gloucester Cty. Sch. Bd., 2016 BL 123552, 4th Cir., No. 15-2056, 4/19/16 (84 U.S.L.W. 1539, 4/21/16).

“When a school elects to separate or treat students differently on the basis of sex,” a school “generally must treat transgender students consistent with their gender identity,” according to the Department of Education's Office for Civil Rights, the court said.

Niemeyer also dissented in that opinion, saying the school “made a good-faith effort to accommodate” the student by offering use of the nurse's restroom and later providing unisex restrooms.

‘Human Dignity' Offended

“Forcing a person of one biological sex to be exposed to persons of the opposite biological sex profoundly offends” human dignity “and individual freedom,” Niemeyer said in his May 31 dissent.

He declined to call for a poll of the court to try to require counsel to reargue before an en banc court, however, because “the momentous nature of the issue deserves an open road to the Supreme Court.”

“Judge Niemeyer rightfully called out that this is a pressing issue,” Sharp said.

The facts of the case are “ ‘clean' ” and would enable the Supreme Court to address Title IX's construction “for national application” without “the distraction of subservient issues,” Niemeyer said.

It would be better for the high court to take the case now “because of the impact it's having on millions of students across the country,” Sharp said.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at and Jeffrey D. Koelemay at

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