4th Circuit Puts Transgender Case On Fast Track to Supreme Court

As previously reported, in April, in a 2-1 decision, the U.S. 4th Circuit Court of Appeals held that a Virginia school board's policy barring a transgender boy (who had not undergone sex-reassignment surgery) from using the boy's rest rooms at his school violates Title IX's ban on discrimination on the basis of sex.  The school board filed a motion for a rehearing en banc, but this week in G.G. v. Gloucester County School Board, (4th Cir., May 31, 2016), the court issued an order denying the rehearing petition.  However Judge Niemeyer, who had dissented in the April decision, filed a dissent from the denial of a rehearing, but said:

While I could call for a poll of the court in an effort to require counsel to reargue their positions before an en banc court, the momentous nature of the issue deserves an open road to the Supreme Court to seek the Court’s controlling construction of Title IX for national application. And the facts of this case, in particular, are especially “clean,” such as to enable the Court to address the issue without the distraction of subservient issues.

Lyle Denniston at SCOTUSblog reports on developments.