Follow Up: Opinion Regarding DOJ and DOE Dear Colleague Letter On Transgender Students

Following up on my previous communication on this issue, I wanted to let you know that the full U.S. Court of Appeals for the Fourth Circuit decided not to grant a rehearing in the G.G. v. Gloucester Bd of Educ. case. In doing so, the April 19, 2016, decision of the three judge appellate panel remains in place.

Rule 35 of the Federal Rules of Appellate Procedure and the Local Rules for the 4th Circuit provide that, upon the filing of a Petition for Rehearing en banc – as the school district did here, any of the judges may request a vote or poll of all the judges on the appellate court concerning the request for rehearing. If a poll is requested and a majority favor a rehearing, the case is reheard by the full Court of Appeals, and the Parties to the dispute can be required to re-brief the issues. If no judge requests a poll that can effectively operate as a denial of the request for rehearing. To the surprise of many, myself included, this is what happened in this case.

There are many reasons the judges did not request a poll, or preferred not to cast a vote on rehearing the case. This includes a feeling that, because of the significance of the issues involved, it is preferable to get the case before the U.S. Supreme Court without the delay of a rehearing en banc.  I believe that is what happened in this case. One of the judges, the Hon. Paul V. Niemeyer, issued a dissenting opinion concerning the lack of a request for a poll and the attendant denial of the request for rehearing. In his short dissent, Judge Niemeyer succinctly lays out the issues involved, interests at stake, and why he believes the three judge panel’s decision is wrong.  Judge Niemeyer goes on to explain the reasons why he chose not to request a poll of the full court.  A copy of Judge Niemeyer’s dissent is attached for your review.

As Judge Niemeyer’s dissents states, the case is focused and devoid of extraneous issues and, therefore, in an appropriate posture for focused review by the Supreme Court. I expect the school board will file a Petition for Writ of Certiorari to the Supreme Court in the near future.

While the 4th Circuit’s decision has authority and is controlling in states in the 4th Circuit, until the case is heard and decided by the Supreme Court, the 4th Circuit decision is not controlling authority in any of the other eleven federal circuits. This includes, of course, the 8th Circuit, which includes Missouri. As such, we continue to advise the adoption of MCE Police 2115, and continue to believe that 2115 will be found to be compliant with Title IX. Stay tuned.

Ernie Trakas

GG v Gloucester Co Sch Bd (4th Cir 5-31-16)

Original Opinion by Ernie Trakas.

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