Wed, June 1st, 2016
Arguing that “time is of the essence,” a federal appeals court judge on Tuesday called for a prompt appeal to the Supreme Court to sort out the rights of transgender students when they use restrooms at school. Circuit Judge Paul V. Niemeyer helped clear the way for an early appeal by withholding a demand that the U.S. Court of Appeals for the Fourth Circuit vote on rehearing a test case on the issue.
At issue in the case of G.G. v. Gloucester County School Board is the meaning of a 1972 federal civil rights law that outlaws discrimination “because of sex” in federally funded education. Specially at issue is whether that law — known as “Title IX” — provides protection to students who identify as having a gender other than what was assigned to them at birth.
There is a widespread, and rapidly growing controversy over that and other transgender rights issues, and the case of sixteen-year-old “G.G.” could be the first to put the issue before the Supreme Court. In some ways, the rapid development of the controversy parallels that over same-sex marriage rights, leading to the Supreme Court decision recognizing equal rights of gays and lesbians to marry, across the nation.
In this case, G.G. is a sixteen-year-old student at Gloucester County High School in Gloucester Courthouse, Va., who was born a girl but now has the identity of a boy, and wishes to use the boys’ restroom at school. He won a two-to-one decision by a three-judge panel of the Fourth Circuit on April 19, and the en banc Fourth Circuit on Tuesday turned down a plea by the school board to reconsider the controversy.
Judge Niemeyer had dissented from the panel ruling, and said on Tuesday that the panel should itself reconsider. But, he went on to say that he declined to call for a vote among his colleagues on the question of en banc review. When there was no request for such a poll, the school board’s rehearing plea was denied.
In withholding such a request, the judge said that “the momentous nature of the issue deserves an open road to the Supreme Court to seek the Court’s controlling construction of Title IX for national application.” This case, he said, presented the legal issue clearly, without “the distraction of subservient issues.”