Filed: May 31, 2016
The Fourth Circuit denied Gloucester County School Board’s petition for rehearing. Judge Niemeyer dissented from the denial of the petition for rehearing.
Judge Niemeyer begins his dissent by pointing out that “[b]odily privacy is historically one of the most basic elements of human dignity and individual freedom.” In his opinion, the current Administration has determined, without congressional authority and in spite of Congress’ “unambiguous authorization in Title IX to provide for separate restrooms, showers, locker rooms, and dorms on the basis of sex,” that they can sidestep such provisions by altering the definition of sex “to mean how any given person identifies himself for herself at any given time,” and consequently deny the dignity and freedom of bodily privacy of affected individuals.
Additionally, Judge Niemeyer points out that the norms on this issue of virtually every civilization are challenged. However, he clarifies that such norms are not meant to “protest against persons who identify with a gender different from their biological sex.” Instead, society needs to seek to understand their situation and strive to address it in helpful, but permissible, ways. Nonetheless, doing so does not require protections of bodily privacy be cut down, nor should the separation-of-powers principles, which were created to safeguard Congress’ role of policymaking and the traditional powers of the States, be circumvented or rejected.
Accordingly, while Judge Niemeyer supports the position that the issue at hand should be granted rehearing before an en banc court, he did not request a poll on the petition for rehearing en banc, because the case is of such “momentous nature” that nothing should impede its path to the Supreme Court so that the Court may present a controlling construction of Title IX for national application. Instead, he casts only a symbolic vote to grant panel rehearing, while urging the parties to seek Supreme Court review.