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Transgender Bathroom Case Likely on SCOTUS Track

By Jonathan R. Tung, Esq. on June 01, 2016 | Last updated on March 21, 2019

This Tuesday, the Fourth Circuit ruled that it would not rehear the case of Gavin Grimm, the Virginia high school student who sought to use the boy's bathroom until a furor rose with parents threatening to vote out the school board unless Grimm was barred from using the boy's bathroom. The Circuit's refusal to rehear the case en banc, which essentially obligates Gavin's school to let him begin using the boy's bathroom again -- or it will at least guarantee that this fight will move up to the Supreme Court.

It was a bit of a tall order wanting all fifteen judges of the Fourth Circuit to hear the case. As it stands, some of the most controversially charged states regarding this issue are now obligated to allow persons who choose to use restrooms inconsistent with their biological sex do so.

Loss of Federal Funds

The panel, on top of refusing to rehear Gavin's case, also opined that public schools are obligated to let trans students use bathrooms of their choosing or run the risk of losing their federal funding. It's a tense situation for sure in North Carolina where such "gender neutral" bathroom talk has been the subject of much public debate.

In fact, the ruling comes within a month of the DOJ's lawsuit against North Carolina over its law and stands in direct opposition to the state's law disallowing trans persons public access to the bathroom of their choice. North Carolinians have called it pro-privacy and pro-protection-of-women; progressives have called it anti-LGBT.

Judge Niemeyer

Only conservative judge Paul Niemeyer expressed his wish to rehear the case and he apparently saw the writing on the wall. In the past, he'd expressed views amounting to "gay marriage bans are good for family" and for children. In expressing his view in the Grimm case, he characterized the issues as "momentous" and urged the parties to seek Supreme Court review posthaste. This case "deserves an open road to the Supreme Court," he said.

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