RICHMOND, Va. (WNCN) – Gov. Pat McCrory is taking the battle over House Bill 2 to a key federal court in Richmond.
McCrory has joined an amicus brief with the 4th U.S. Circuit Court of Appeals in a case involving a transgender Virginia student who sued to use school bathrooms based on his gender identity.
In April, a three-judge panel of the 4th Circuit ruled that a school policy in Gloucester County schools barring Gavin Grimm from using the bathroom of his sexual identity was discriminatory. Grimm was born female but identifies as male.
The 4th Circuit also oversees North Carolina as well as other states.
The 4th Circuit decision came just weeks after North Carolina passed House Bill 2 and put North Carolina on a collision course with federal authorities. U.S. Attorney General Loretta Lynch referenced the 4th Circuit decision in her comments Monday when she announced the Department of Justice would sue North Carolina, seeking to block House Bill 2. McCrory, earlier Monday, said the issue needed to be clarified; Lynch shot back that the 4th Circuit had just done that.
Tuesday’s amicus brief in the 4th Circuit was filed from the governors of North Carolina and Maine and the states of West Virginia, Arizona, Kansas, Nebraska, Texas and Utah.
In the 16-page brief, McCrory and the others asked for an “en banc” – that is, full court, review. Essentially, McCrory and the others are arguing that the importance of the case merits the full 4th Circuit the decision by three of its members. The court has 15 total members.
The governors and states argued that the Department of Education is interfering with the states.
“This Court should rehear this case en banc because the panel majority’s opinion is the first in the country to permit the United States Department of Education to interfere with local schools by unilaterally redefining the statutory term “sex”—long and widely accepted to be a biological category—to include gender identity,” the plea states. “No court has ever before accepted an interpretation of that term that would require, as here, that a biological girl is entitled to use the boys’ restroom, and vice versa.”
The plea said “every other court” has found “sex” means biological sex, not gender identity.
The plea also said the states had not been given clear indication that federal dollars might be withheld in cases like this.
The federal court of appeals are one step below the U.S. Supreme Court. Decisions at the appeals level can be appealed to the Supreme Court, but the Supreme Court agrees to hear only a small number of the pleas before it, and usually those were it decides the issue has a compelling national interest.