Getting your Trinity Audio player ready...

A Virginia federal appeals court overturned a lower court ruling rejecting a transgender Gloucester High School student’s claim he had been discriminated against.

A three judge panel of the 4th Circuit Court of Appeals ruled that discriminating against a person on the basis of their gender identity violates federal law against sex discrimination in schools.

In a 2-1 decision, the appeals court overturned U.S. District Court Judge Robert Doumar’s dismissal of Gloucester High junior reconsider Gavin Grimm’s lawsuit.

In his lawsuit, Grimm said the high school was violating federal law banning sex discrimination in schools by refusing him access to boys’ bathrooms.

The appeals court directed Doumar to reconsider Grimm’s request for preliminary injunction ordering the high school to let him use the boys’ bathrooms.

Grimm’s charge that Gloucester violated federal anti-discrimination law and his request for an injunction now go back to Doumar, for action in line with the appeals’ court opinion.

Grimm was born female but identifies as male. After complaints, the School Board adopted a policy requiring students to use public restrooms corresponding with their biological gender.

Walter Clemons, Superintendent of Gloucester Schools, said he did not wish to comment on the ruling at this time.

Key to the appeals court decision is a 2015 opinion by the U.S. Department of Education that schools should treat transgender students consistent with their gender identity.

The court held that federal law requires judges give deference to agencies’ interpretations of their regulations.

Grimm’s claim is based on a 1972 law governing federal aid to schools, which banned sex discrimination but did not address the issue of transgender students.

The appeals court judges said there are a number of situations, such as disfiguring accidental injury or rare biological conditions, in which Gloucester’s rules on biological sex don’t clearly indicate which bathroom a student should use.

More Top Picks Coffee Makers

The U.S. Education Department’s 2015 opinion “resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity,” Judge Henry Floyd’s opinion said.

The opinion noted that dictionaries in use when the 1972 law was enacted “also suggest that a hard-and-fast binary division on the basis of reproductive organs, although useful in most cases, was not universally dscriptive.”

The judges also said Doumar did not properly weigh evidence that Grimm presented about the impact of the high school’s restroom policy in refusing to grant a preliminary injunction. One of the two, Senior Judge Andre Davis, however, added that he would have ordered a preliminary injunction himself.

In a dissent, Judge Paul Neimeyer said “this unprecedented holding overrules custom, culture and the very demands inherent in human nature for privacy and safety.”

He said Floyd and Davis relied too much on the U.S. education department’s opinion.

Grimm was represented by the American Civil Liberties Union of Virginia, which hailed the appeals court decision.

“Gavin’s fight has been a beacon of hope in the face of increasingly hostile rhetoric against transgender people in Virginia, and across the nation,” said Gail Deady, the Secular Society Women’s Rights Legal Fellow at the ACLU of Virginia. “The court’s ruling sends a strong message to schools and lawmakers that discriminatory restroom policies don’t just harm transgender students, they put Title IX funding at risk.”

Because the 4th circuit covers the Carolinas. the ruling undercuts North Carolina’s recent law requiring transgender students use bathrooms of their birth sex, not their gender identity.

Ress can be reached at 757 247 4535. Daily Press reporter Frances Hubbard contributed to this report