A federal appeals court’s decision backing one of the Obama administration’s most significant efforts to eliminate discrimination against transgender people will remain in effect, thanks to an order handed down on Tuesday. This is not a total victory for trans rights — in no small part because federal appeals courts do not have jurisdiction over the entire nation in the way that the Supreme Court does — but it is a significant one, especially because of the specific court that handed down Tuesday’s order. The United States Court of Appeals for the Fourth Circuit includes North Carolina, the home of what is probably the highest-profile anti-LGBT law in the nation.
To recap the events in this litigation so far, last April, the Fourth Circuit ruled in favor of a trans student who was prevented from using school bathrooms that aligned with his gender identity. The decision primarily relied upon the Education Department’s interpretation of its own regulations governing sex-segregated bathrooms, as well as the Supreme Court’s decision in Auer v. Robbins, which requires courts to defer to such interpretations. Under the agency interpretation at issue in this case, “when a school elects to separate or treat students differently on the basis of sex” it “generally must treat transgender students consistent with their gender identity.”
Although this case, G.G. v. Gloucester County School Board, involved a local school board in Virginia, the ruling controls all federal courts within the Fourth Circuit, including courts in North Carolina.
A few weeks later, in the beginning of May, the school board asked the full Fourth Circuit to rehear the case. Typically, federal appeals are heard by panels of three judges. In rare instances, however, an appeals court will agree to convene an “en banc” panel — a panel consisting of every active judge on the court — to hear a particular case. Tuesday’s order denied en banc review of the G.G. case.
That’s not a particularly surprising outcome. En banc review is considered an extraordinary action by an appeals court, and the Fourth Circuit is dominated by Democratic appointees who, for the most part, can be expected to back the Obama administration’s play in G.G. — or, at the very least, to defer to the administration under Auer. The Fourth Circuit’s conservative minority also doesn’t appear to have put up much of a fight. According to the court’s Tuesday order, not one judge called for a poll of the court’s members to determine whether any of them supported en banc review.
Judge Paul Niemeyer, probably the most conservative member of the Fourth Circuit, did pen an angry opinion accompanying the Tuesday order. It is the sort of opinion that uses phrases like “politically correct acceptance” and “virtually every civilization’s norms on this issue stand in protest.” If Justice Antonin Scalia were still alive, he would no doubt read it and smile.
But Scalia is dead, and that reality puts a serious kink in Niemeyer’s plans. In the final paragraph of his opinion, Niemeyer discloses his strategy to protect anti-trans discrimination: “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.” Additional review by the appeals court would delay review by the justices, and Niemeyer wants this case to get there soon.
Before Scalia’s death, this would have been a smart strategy. Among other things, Scalia and three other justices previously authored opinions indicating a desire to overrule Auer. And, while Justice Anthony Kennedy — a conservative who occasionally votes with the Court’s liberal bloc — is largely supportive of gay rights, his views on trans rights is far more uncertain.
Absent Scalia, however, it is very likely that there are at least four votes on the Supreme Court to uphold the Fourth Circuit’s decision in G.G. That’s not enough to set a national precedent, but it is enough to keep the Fourth Circuit’s ruling in place within the states overseen by that court.
So Niemeyer’s ideological allies probably won’t be able to look to the Supreme Court for relief, but that doesn’t mean that they are without cards to play. North Carolina Gov. Pat McCrory (R) filed a lawsuit seeking to defend parts of his state’s anti-LGBT law. That lawsuit landed in a very conservative judge’s courtroom. In the short term, that may be enough for the governor to get a trial court opinion reading G.G. very narrowly.
Meanwhile, a bloc of states led by Texas filed another lawsuit broadly challenging the Obama administration’s efforts to prevent anti-trans discrimination. That case, thanks to what appears to be a deliberate effort to manipulate the process federal courts use to assign cases to judges, is assigned to a federal judge who has taken aggressive anti-LGBT actions in the past. In the worst case scenario for transgender people, that judge could issue a nationwide injunction restricting trans rights. And, while such injunctions are disfavored, that judge’s decision will appeal to the Fifth Circuit, which is very conservative.
So, while Niemeyer’s plans are unlikely to come to fruition, the Texas case could create an anomaly that our federal court system currently is not equipped to handle. An anti-LGBT judge could issue a nationwide injunction that conflicts directly with the Fourth Circuit’s decision in G.G. Meanwhile, the only court that can resolve this uncertainty currently has only eight members, and may lack the votes it needs to resolve this impasse in either direction.