Virginia School Board To Seek Supreme Court Review In Trans Student's Case

WASHINGTON — A case challenging the Obama administration's interpretation of existing civil rights laws as providing protections from discrimination for transgender people will be headed to the Supreme Court this summer.

Because the court is soon recessing for the summer, however, the earliest the court could hear the case — if it decides to take it up — would be sometime late this year or early 2017.

The Virginia school board that passed a policy restricting students to restrooms reflecting their "biological gender" announced in a filing on Tuesday that it will be asking the U.S. Supreme Court to review a case brought against the policy by a transgender student.

Gavin Grimm sued the Gloucester County School Board over the policy, backed by lawyers from the ACLU, claiming, among other arguments, that the policy violates Title IX of the Education Amendments of 1972. The Obama administration has told school districts repeatedly that Title IX's sex discrimination protections include protections against anti-transgender discrimination. At the appeals court level, the Justice Department weighed in on Grimm's behalf.

In mid-April, a three-judge panel of the 4th Circuit Court of Appeals ruled in a 2-1 decision that "the [Education] Department’s interpretation of its own regulation ... as it relates to restroom access by transgender individuals, is entitled to … deference and is to be accorded controlling weight in this case." The 4th Circuit announced in late May that it would not be reviewing its earlier ruling.

On Tuesday, lawyers for the school board wrote in a filing at the 4th Circuit, "The School Board intends to file a petition for writ of certiorari with the United States Supreme Court within ninety (90) days of this Court’s entry of judgment."

As such, the lawyers are asking the appeals court to put its ruling on hold while the petition to the Supreme Court is pending. A stay would keep the case on hold — and the Gloucester County School Board's policy in place — while the Supreme Court decides whether to hear the case.

The filing notes that the ACLU opposes the stay request and will be filing a response to the request.

After the response is submitted, the 4th Circuit will issue a ruling on the stay request. The court has, in accordance with its rules, issued a temporary stay of the mandate pending a ruling on the stay request. If denied, the school board likely would ask the Supreme Court to grant a stay pending its decision on whether to grant certiorari.

[Update, 7 p.m. June 9, 2016: The 4th Circuit Court of Appeals, in a 2-1 reflective of the initial decision in the case, denied the school board's request for a stay pending the Supreme Court's decision whether to grant certiorari in the case.]

Because of the timing of when the filing will be coming in, the earliest the justices will consider whether to hear the case would be in late September in advance of the start of the court's next term — and after the start of the next school year.

Meanwhile, several other cases addressing similar questions are pending in other federal courts. Five lawsuits relating to North Carolina's HB 2 are pending in various federal courts in the state, and Texas, joined by 10 other states, filed a lawsuit against the Obama administration over its Title IX and other policies interpreting existing civil rights laws as providing protections for transgender people.