Without fanfare, a federal appeals court on Tuesday declined to undo an earlier ruling in favor of a transgender student in Virginia whose high school barred him from using the restroom that comports with his gender identity.
The student, Gavin Grimm, had scored a major victory in April when the U.S. Court of Appeals for the 4th Circuit gave "controlling weight" to the Obama administration's position that discrimination against trans students in an education setting is sex discrimination under federal civil rights law.
The boy's school had asked the full court to reconsider the ruling, but none of the judges felt compelled to do so and didn't bother to explain why. That means the ruling stands -- and its edict now covers the court's entire jurisdiction, including North Carolina, which has been in the eye of the storm in the recent bathroom wars.
But one judge in the circuit did speak out. And his protest, delivered with grand prose and a few questionable assumptions about the legal battle, will likely convince Grimm's school to take the case all the way to the Supreme Court, which may or may not choose to enter the fray and settle the law.
"Bodily privacy is historically one of the most basic elements of human dignity and individual freedom," wrote U.S. Circuit Judge Paul Niemeyer, the lone dissenter in the original April decision. "And forcing a person of one biological sex to be exposed to persons of the opposite biological sex profoundly offends this dignity and freedom."
He was only getting started. His choice of words set up in familiar terms the discord between the Obama administration and the growing number of states now challenging the government over its reading of Title IX of the Education Amendments of 1972, the law at issue in Grimm's case and the multistate lawsuit filed last week in Texas.
But before he discussed the law, Niemeyer hit a number of talking points in the debate -- hinting at the culture wars, he spoke of the inhumanity of "forced exposure" and of concerned parents who "universally find it offensive" to think of their children exposed to members of the opposite sex.
"Somehow, all of this is lost in the current Administration’s service of the politically correct acceptance of gender identification as the meaning of 'sex' -- indeed, even when the statutory text of Title IX provides no basis for the position," Niemeyer wrote.
Alarmist rhetoric aside, Niemeyer is correct when he says that Title IX, as written, doesn't mandate that schools receiving federal funding not discriminate on the basis of a person's gender identity. It only says they can't discriminate on the basis of sex.
But the Obama administration, relying on Supreme Court decisions and other precedents going back several years, has interpreted the statute to include protections for gender identity, and issued guidance to schools to provide accommodations for trans students. When Niemeyer's court ruled in the Grimm case, it deferred to the government's interpretation of its own 2014 guidance.
For Niemeyer, this was simply too much -- as was the government's later move to issue new guidance for schools that receive federal funding on how they should provide trans-inclusive bathroom access and other accommodations.
“Virtually every civilization’s norms on this issue stand in protest.”
- U.S. Circuit Judge Paul Niemeyer
"A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so," read the joint guidance sent to schools nationwide on May 13, which relied in part on the Grimm case for legal support.
It's this language and interpretation of Title IX, in essence, that North Carolina, Texas and other states are now challenging in federal court. And that Niemeyer also seems to have a problem with.
"The Department of Education and the Justice Department, in a circular maneuver, now rely on the majority’s opinion to mandate application of their position across the country," he wrote, adding that his court and the 4th Circuit simply lacked "congressional authorization" to go that route.
Niemeyer said that "by redefining sex to mean how any given person identifies himself or herself at any given time," the government deprives "all affected persons the dignity and freedom of bodily privacy."
"Virtually every civilization’s norms on this issue stand in protest," he added.
Here's where the Supreme Court comes in: In view of "the momentous nature of the issue," the judge all but implored the Gloucester County School Board, the school district where Grimm attends, to seek review of the case from the justices. He called the case a "clean" one -- meaning it's a good vehicle for the Supreme Court to resolve the legal question conclusively.
"Time is of the essence, and I can only urge the parties to seek Supreme Court review," he concluded.
Whether the high court will heed his call is far from certain, especially now that it's one member short. And precisely because the issue is so political at the moment, the justices may very well let the political process -- and a spate of lawsuits bubbling in lower courts -- decide whether kids like Grimm should be protected under current law.