After the Fourth Circuit Court of Appeals rejected a request Tuesday to reconsider a previous ruling affirming the rights of a Virginia transgender student, Gov. Pat McCrory's defense of HB2 has a hit a major road block.
The intermingling of the two cases in question—the pivotal Virginia case (G.G. v. Gloucester County School Board) decided in favor of transgender student Gavin Grimm, and McCrory’s HB2 defense, McCrory v. United States—charts a course for the future demise of HB2’s bathroom provision.
Here are the basic facts governing McCrory’s case in defense of HB2:
1) North Carolina falls within the Fourth Circuit’s jurisdiction, which means the Virginia ruling siding with a transgender student’s right to use their bathroom of choice applies to the Tar Heel State.
2) Grimm’s case was decided on the basis of sex discrimination prohibitions included in Title IX of the Education Amendments of 1972, a federal law that McCrory's lawsuit against the federal government fails to address, writes Ian Millhiser.
The Justice Department’s letter concludes that HB2 violates three separate federal laws, Title VII, the Violence Against Women Reauthorization Act, and Title IX of the Education Amendments of 1972. McCrory’s complaint claims that the state is not violating the first of these two laws, but it is conspicuously silent regarding Title IX. [...] McCrory’s silence regarding Title IX may be an acknowledgement that any effort to defend his states actions under Title IX is doomed.
3. Now that the Fourth Circuit has declined to rehear G.G., the only other avenue for reversal of the ruling is the Supreme Court, which seems unlikely to overturn it—if the justices even decide to take up the question.
Absent [Justice Antonin] 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.
4. McCrory might get a favorable ruling from the conservative judge hearing his HB2 case, but ...
[McCrory’s] 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.
But even if Judge Terrence Boyle's ruling hands McCrory a temporary win, the decision will surely be appealed to the Fourth Circuit, a virtual dead end for him given its previous ruling in G.G., and the relatively liberal makeup of its judges.
5. McCory is mad, mad, mad, and everyone but him is to blame: President Obama, the extreme courts, NC Attorney General Roy Cooper, and Congress!
McCrory’s statement on yesterday’s Fourth Circuit refusal to review G.G.:
“School systems throughout our nation should be allowed to make sensible accommodations for students whose gender identity conflicts with their own physical anatomy. Yet the extreme Obama courts and administration deny this common sense flexibility at the expense of privacy for millions of boys and girls in our schools’ restrooms, locker rooms and shower facilities.
“It’s unfortunate that our attorney general Roy Cooper didn’t join us to protect the expectation of privacy for our children. [...] the momentous nature of this issue deserves an open road to the Supreme Court to seek the Court’s controlling construction of Title IX for national application.’
“Alternatively, the U.S. Congress could take action to clarify the scope of federal anti-discrimination laws so there is consistent application across our country.”
It never ceases to amaze how everyone on the planet is at fault for HB2—except Pat and his GOP counterparts.