School Fighting Bathroom Policy Denied a Stay

     RICHMOND, Va. (CN) — The Fourth Circuit denied relief to a Virginia school board that is heading to the Supreme Court to keep a transgender child from using the boys’ bathroom.
     Gloucester County School Board has said it immediately “expressed support” for Gavin Grimm when he came out as transgender in his sophomore year of high school.
     Grimm had been enrolled in high school as a girl, but Gloucester said it changed the child’s name in school records and began referring to him by his “new name and male pronouns.”
     Gloucester was adamant, however, that Grimm should not be allowed to use the boys’ bathroom, prompting the boy to file suit.
     The school board maintains that Grimm should use the girls’ bathroom, which corresponds to his “anatomical sex,” or any of the single-stall, unisex restrooms it has newly designated.
     Though a federal judge denied Grimm an injunction, the Fourth Circuit reversed earlier this year.
     Gloucester plans to petition the U.S. Supreme Court for certiorari but moved the federal appeals court for a stay in the meantime.
     The Fourth Circuit shot Gloucester down 2-1 last week in a brief order.
     As with the prior reversal, the panel split Thursday with Judge Henry Floyd and Senior Judge Andre Davis in the majority.
     Judge Paul Niemeyer said he would have granted a stay.
     None of the judges issued opinions with their order.
     A week earlier, the Fourth Circuit had denied Gloucester a rehearing en banc.
     Niemeyer did post a dissent on that order, saying “forcing a person of one biological sex to be exposed to persons of the opposite biological sex profoundly offends [the most basic elements of human] dignity and freedom.”
     Gloucester’s controversy comes in the wake of a May 13 letter by the U.S. Departments of Education and Justice to public educators with updated guidelines on Title IX discrimination laws regarding gender-nonconforming individuals.
     “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,” the letter says.
     In its motion for a stay, Gloucester County School officials had said the government warned that schools will lose federal funding “by not treating transgender students of all ages consistently with their gender identity instead of their biological sex.”
     “Both letters seek to do what Congress has not done — replace the term ‘sex’ with ‘gender identity’ in order to support an outcome unilaterally desired by the executive branch,” the motion said. “This raises substantial questions concerning both federalism and the separation of powers.”
     The school board is represented by David Corrigan with Harman, Claytor, Corrigan & Wellman. The attorney has not returned an email seeking comment.
     Grimm’s attorneys with the American Civil Liberties Union have not returned a voicemail seeking comment.

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