Despite back to back victories in federal court, the rights of transgender students like Gavin Grimm of Gloucester County, Va. are not yet secure and may finally be decided by the highest court in the United States.
The school board for that Virginia county has decided to request a stay of the April ruling by a three-judge panel of the 4th Circuit Court of Appeals, which upheld the Obama Administration’s interpretation of Title IX of the Education Amendments of 1972 to include protections for transgender students at schools receiving federal funding.
The reason for the stay is so Gloucester County can ask the U.S. Supreme Court to review the 4th circuit’s ruling, after the judges decided to not reconsider their decision last month.
And because of the timing, with the Supreme Court going into recess, the earliest the high court might respond to the request is September, in advance of the next term beginning October 3, and is more likely to come in 2017. That will likely mean Grimm, 16, will be required to observe the school board policy restricting him to the bathroom of his so-called “corresponding biological gender.” Grimm was assigned female at birth.
Once the ACLU submits its response, the judges in the 4th Circuit will rule on the school board’s stay request. But as the website reported, even if it is denied, the school board would most likely request one from the Supreme Court, pending its decision on whether to grant “certiorari,” which is Latin for a writ in which a higher court reviews the ruling of a lower court.
Grimm and his ACLU attorneys successfully argued that in violating Title IX of the Educational Amendments Act of 1972, the school board policy failed to respect the authority of the Department of Education, which stated in a 2015 memo that when a school decides to treat students differently on the basis of sex, it “generally must treat transgender students consistent with their gender identity.”