4th Circuit Leaves Pro-Trans Ruling in Place, Teeing Up Possible Supreme Court Review

Yet another skirmish in the bathroom wars.

Sara D. Davis/Getty Images

On Tuesday, the 4th Circuit Court of Appeals decided not to reconsider a recent ruling affirming the Department of Education’s interpretation of “sex discrimination” to encompass gender identity discrimination. That ruling, issued by a three-judge panel, could have been reheard by every judge in the circuit and possibly reversed. But on Tuesday, the circuit declined to take that step, allowing the decision to stand.

As part of its ruling, the panel found that public schools must allow trans students to use the bathroom that aligns with their gender identity—or risk losing federal funds. Its decision continues to bind states within the 4th Circuit—including North Carolina, whose anti-trans law is currently the subject of several lawsuits. (The University of North Carolina’s president has already announced that the university system will not comply with the law’s trans-exclusionary provisions.) However, well-funded anti-trans advocates are now likely to appeal the 4th Circuit’s ruling to the Supreme Court. A tie at the high court would affirm the 4th Circuit’s decision without setting any sort of precedent.

Only one judge, Paul Niemeyer—a George H.W. Bush appointee—stated his desire to rehear the case and overrule the panel’s ruling. (Niemeyer also dissented from his circuit’s same-sex marriage ruling, arguing that gay marriage bans were necessary to secure “stable family units” and to “giv[e] children an identity.”) His dissent is worth excerpting at length because it is a tidy summary of the overwrought, pretextual arguments anti-trans activists will be testing out in the coming months. “Bodily privacy is historically one of the most basic elements of human dignity and individual freedom,” Niemeyer begins. (Incidentally, Niemeyer strongly opposes a constitutional right to abortion access.)

The judge continues:

And forcing a person of one biological sex to be exposed to persons of the opposite biological sex profoundly offends this dignity and freedom. Have we not universally condemned as inhumane such forced exposure throughout history as it occurred in various contexts, such as in prisons? And do parents not universally find it offensive to think of having their children’s bodies exposed to persons of the opposite biological sex?

Niemeyer accuses the Obama administration of kowtowing to “the politically correct acceptance of gender identification as the meaning of ‘sex,’ ” arguing that it has redefined sex:

to mean how any given person identifies himself or herself at any given time, thereby, of necessity, denying all affected persons the dignity and freedom of bodily privacy. Virtually every civilization’s norms on this issue stand in protest.

The “momentous nature of the issue,” Niemeyer writes, “deserves an open road to the Supreme Court. … I can only urge the parties to seek Supreme Court review.” 

One last note: Niemeyer’s hysterics somewhat obscure the reality of the case, so let’s give it a bit of background and context. Gavin Grimm, a Virginia high school student, received a medical diagnosis of gender dysphoria and transitioned, physically and legally, from female to male. His high school principal gave him permission to use the men’s bathroom, which he did without incident. But after two months, a handful of adults—several of whom had no children at Grimm’s school—complained, then threatened to vote out the school board if they did not bar Grimm from the men’s bathroom.

At two school board meetings, these activists called Grimm a “freak” and compared him to a person who believes he’s a dog and wants to urinate on fire hydrants. The school board caved to this pressure and passed an anti-trans law targeting a class of one: Grimm. With the help of the ACLU, Grimm sued. The 84-year-old district court judge overseeing his case—who once said HIV-positive people who have unprotected sex “should be shot”—orally dismissed Grimm’s primary claim without explanation, then bemoaned sanctuary cities and marijuana legalization. A 4th Circuit panel reversed the district judge’s ruling, but now Niemeyer is vigorously encouraging the school board to seek an anti-trans ruling from the Supreme Court of the United States.

That seems like a lot of effort to keep one kid out of the bathroom.