A federal appeals court that had its support of transgender privilege in public schools rejected by the U.S. Supreme Court now apparently has washed its hands of the original case, returning it to a district court where it likely will be dismissed entirely.
That’s because the student at the center of the case, a girl in the Gloucester school district in Virginia, has graduated.
Word that the 4th U.S. Circuit Court of Appeals canceled oral arguments in the case brought by Gavin Grimm – a girl who wanted to use the boys’ restrooms and other facilities in the school – came from the nonprofit legal group Liberty Counsel.
The appeals court judges had planned to hear arguments in September in the case.
The court had ruled that Title IX of the federal law should be read to include “gender identity” and that a girl who calls herself a boy can use the boys’ private areas, such a restrooms and showers.
But the U.S. Supreme Court set aside the ruling and ordered further action at the lower level.
The original 4th Circuit ruling was based in part on former President Obama’s order that public schools open boys’ showers to girls, and girls’ showers to boys, based on the student’s “perceived gender.”
President Trump rescinded the Obama policy order shortly after taking office.
“The federal law does not allow persons to subjectively think, and therefore legally become, the opposite of their biological sex,” said Mat Staver, founder of Liberty Counsel.
“Giving legal credence to a biological impossibility would undermine the law and cause chaos and significant harm. Your DNA is fixed at birth. You cannot change your sex or your race from your hard-wired biology. Such a legal fiction would undermine the purpose of the law.”
The case was filed by Grimm when she began using the boys’ restroom in public school, and the board adopted a policy requiring students to use either the restroom that corresponds with their biological gender or a private, single-stall restroom.
The Supreme Court sent the case back to the lower appeals court, whose ruling it had suspended.
At the heart of the problem an Obama order to public schools that presumed that when Congress adopted Title IX of the Education Amendments in 1972, its members intended to allow boys who “identify” as girls into girls’ showers.
But President Trump reversed the order, and the Supreme Court sent the case back to the lower court.
“The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February, 22, 2017,” the high court said in its only comment on the case.
Obama’s order ignored the rights of millions of other students not to be unclothed in the presence of someone of the opposite gender.
Obama’s move also would have opened up schools for liability should they, for example, require boys to room together on school field trips. Obama’s plan would have required a school to allow a boy to room with a girl.
“The first duty of school districts is to protect the bodily privacy rights of all of the students who attend their schools and to respect the rights of parents who understandably don’t want their children exposed in intimate changing areas like locker rooms and showers,” said Kerri Kupec of the Alliance Defending Freedom, which had fought the Obama administration over the issue.
“President Trump, Attorney General Sessions, and Education Secretary DeVos rightly rescinded the faulty directive that the Departments of Education and Justice had issued during the Obama administration. It only makes sense for the Supreme Court to vacate the 4th Circuit’s earlier decision and instruct it to reconsider this case,” she said.
The term “sex” in the federal law, until Obama tried to change it, simply meant the gender at birth, male or female.
“Big business shouldn’t be advocating for boys to share the girls’ locker rooms and showers – and vice versa – in our public schools, and yet that’s precisely what these 53 companies are doing,” Kupec said at the time.