Lawyers for an anti-LGBT school board may someday be celebrated for inadvertently making the law’s protections for transgender students much stronger than they would have been if those lawyers had simply given up.
To explain, last month, the United States Court of Appeals for the Fourth Circuit handed down a decision ruling against a Virginia school board that tried to exclude transgender students from bathrooms that align with their gender identity. Yet, while the decision was an important victory for trans rights that is likely to have widespread implications — North Carolina, in particular, should be very nervous about its anti-trans policies after this decision — the court’s opinion itself is actually quite modest.
Rather than offering a sweeping pronouncement about the rights of trans people under federal civil rights law, Judge Henry Franklin Floyd’s opinion relies on the Obama administration’s interpretation of an Education Department regulation implementing a civil rights law. This distinction matters because it means that the trans community’s victory in G.G. v. Gloucester County School Board could be swept away pretty easily by a more conservative president. Had Judge Floyd written that the underlying law itself prevents anti-trans discrimination, then this civil rights victory would be much harder to displace.
Which brings us to a petition that lawyers for the Gloucester County School Board filed in the Fourth Circuit on Tuesday. The document asks the court to rehear the school board’s defense of its anti-trans policy en banc, an infrequently invoked process where all of the active judges of a federal appeals court meet to reconsider a decision handed down by a three-judge panel. The school board’s primary argument is that Judge Floyd’s opinion “injects uncertainty” into the law “because it does not answer the fundamental question of whether the School Board’s restroom and locker policy violated Title IX.”
Title IX is a federal law which provides that no one “shall, on the basis of sex . . . be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The school board’s petition complains that Judge Floyd’s opinion “did not address this fundamental question — whether Title IX’s statutory prohibition of discrimination ‘on the basis of sex’ includes “gender identity.”
That’s a fair reading of Floyd’s opinion. Recall that Floyd, rather than deciding this broader legal question, handed down a more restrained opinion that primarily focused on how much deference the court owes to the administration’s interpretations of federal regulations. The Fourth Circuit panel’s opinion was a loss for the school board, but it wasn’t a sweeping, crushing defeat.
Now, however, the school board’s lawyers appear to be asking the court to reopen the case — in order to decide whether to hand the school board a sweeping, crushing defeat.
The Fourth Circuit, it is worth noting, one of the more liberal federal appeals courts. Its 15 active judges include 9 Democratic appointees, 5 Republican appointees and one judge who received a recess appointment from President Clinton before receiving a lifetime appointment from President George W. Bush. Additionally, because the three-judge panel that heard G.G. included Judge Andre Davis, an Obama appointee who is partially retired, Judge Davis will also join his 15 active colleagues if the court hears the case en banc. That adds up to a whole lot of judges who aren’t likely to be sympathetic to anti-LGBT laws.
To be sure, en banc petitions are rarely granted, so the most likely outcome is that the Fourth Circuit simply decides to let the panel’s decision stand. Should they decide that the “uncertainty” that the school board complains about needs to be resolved, however, then G.G. could become an even bigger victory for trans rights than it was after Floyd’s opinion was handed down.