A panel of the Third Circuit heard oral argument today, held a brief recess, and then reconvened and announced that it would affirm the ruling below. Quite extraordinary.
The case involved access by transgender school students to the bathroom of their choice — that is, whether a school district could allow transgender students to use the bathroom corresponding with their gender, not their sex at birth. The suit was brought by school parents who claimed that the policy violated other students’ bodily privacy rights. The district court ruled in favor of the school district. Today’s argument was before Judges McKee, Shwartz, and Nygaard.
I wasn’t aware of a specific case where a Third Circuit panel had ruled from the bench after argument, but on Twitter Katie Romano pointed to a 2008 immigration appeal where it had happened. [UPDATE: Andy Simpson also pointed me to a 2001 Virgin Islands appeal where Chief Judge Becker read an opinion from the bench after argument, In re: Application for Change or Reassignment of Judge Pursuant to 28 U.S.C. §§ 144, 455 (3d Cir. May 30, 2001).] Still, extremely rare.
From Roebuck’s story:
Circuit Judge Theodore McKee said he and his colleagues – Judges Patty Shwartz and Richard Lowell Nygaard – recognized how important the case was to students at Boyertown Area Senior High School and wanted to resolve the issue before the students at the heart of the case, many of them seniors, graduated later this month.
Reading an order from the bench, McKee said that the judges agreed with the lower court that found the privacy of four students who sued the district in the Berks County borough last year had not been violated by administrators’ decision to allow transgender students into the bathrooms and locker rooms of their choice.
“We agree that the plaintiffs have not demonstrated a likelihood of success,” McKee said, reading from the bench, “and that they have not demonstrated that they will be irreparably harmed.”
UPDATE #2: The written judgment, issued the same day as the argument, is here.