October 3, 2016 at 5:05 pm EDT | by Lou Chibbaro Jr.
Supreme Court declines to take LGBT rights case
Kenda Kirby, transgender, Supreme Court, gay news, Washington Blade

Kenda Kirby filed a lawsuit against NCSU that accuses its College of Veterinary Medicine of illegally expelling her from a Ph.D. program because of her ‘perceived gender non-conformity, sex, sexual orientation, gender, gender identity, and political affiliation or belief.’ (Washington Blade file photo by Michael Key)

The U.S. Supreme Court on Monday announced it has declined to consider a case filed by veteran LGBT activist Kenda Kirby that she believed had the potential to greatly expand non-discrimination protections for LGBT people.

The high court included the case of Kirby v. North Carolina State University among a list of hundreds of cases in which it denied a Petition for a Writ of Certiorari calling on the court to take the case and issue a ruling on its merits.

Kirby, who is not an attorney, earlier this year wrote and filed her own Petition for a Writ of Certiorari for her case.

The case is part of a lawsuit that she filed against NCSU in 2014 that accuses its College of Veterinary Medicine of illegally expelling her from a Ph.D. program in 1994 because of her “perceived gender non-conformity, sex, sexual orientation, gender, gender identity, and political affiliation or belief.”

The petition, among other things, alleges that two professors in charge of the program deliberately gave her failing grades in several courses after they learned she attended a national LGBT rights March on Washington in October 1993. It says the improper grades led to her dismissal from the program based on failing grades.

Court records show that the statute of limitations for filing a lawsuit for the alleged discrimination in 1994 was extended to 2014 after the university sent Kirby a bill in 2013 for tuition it claimed she owed the school from her enrollment in the Ph.D. program 20 years earlier.

Her petition for Supreme Court consideration was part of an appeal of a decision by the U.S. Court of Appeals for the Fourth Circuit, which upheld a decision by the U.S. District Court for the Eastern District of North Carolina dismissing her lawsuit.

The District Court dismissed the case on grounds that the court “lacks subject matter jurisdiction over this case.” The court, among other things, cited an 11th Amendment provision in the U.S. Constitution that gives states and state institutions immunity from being sued by private individuals.

The District Court also denied Kirby’s claims that she had been protected under Title IX of a federal civil rights law banning discrimination by educational institutions on grounds that sexual orientation was not covered under that statute.

Kirby argued in her Supreme Court filing that the lower courts’ decisions were based on an overly narrow interpretation of Title IX in direct conflict with a more recent decision by another federal court. She also argued that the lower courts’ decisions were in conflict with the Supreme Court’s decision legalizing same-sex marriage.

If the court had accepted Kirby’s case and eventually handed down a decision in her favor it would have put in place something LGBT rights attorneys have been seeking through other cases during the past several years – a definitive ruling that existing federal civil rights laws ban discrimination based on sexual orientation and gender identity and expression.

Such a decision would effectively ban discrimination against LGBT people in all 50 states and make it unnecessary for Congress to pass an LGBT civil rights bill, which Congress has declined to do for more than 30 years.

Attorneys familiar with Kirby’s case said a decision by the Supreme Court not to take the case would not harm the other cases pending in lower courts seeking to expand non-discrimination protections for LGBT people.

“I am disappointed that the court was not ready to consider the questions raised by my case since they affect millions of Americans daily,” Kirby told the Washington Blade in an email message. “I am hopeful they will address these issues in the near future in a way that ensures ‘Equal Justice Under Law,’” she said.

Kirby also told the Blade she has filed complaints against NCSU with the U.S. Department of Education and Department of Justice seeking an administrative remedy to her allegations of discrimination. She said representatives of both federal agencies told her they would wait until her court case reached a conclusion before deciding whether to consider her case.

Lou Chibbaro Jr. has reported on the LGBT civil rights movement and the LGBT community for more than 30 years, beginning as a freelance writer and later as a staff reporter and currently as Senior News Reporter for the Washington Blade. He has chronicled LGBT-related developments as they have touched on a wide range of social, religious, and governmental institutions, including the White House, Congress, the U.S. Supreme Court, the military, local and national law enforcement agencies and the Catholic Church. Chibbaro has reported on LGBT issues and LGBT participation in local and national elections since 1976. He has covered the AIDS epidemic since it first surfaced in the early 1980s. Follow Lou

  • I wonder how long the republicans will hold the SCOTUS hostage. If Clinton wins the election would they prevent the seats from being filled for another 4 years? Are they hoping the entire SCOTUS just dies off while they roadblock the only balance to their planned far right takeover? I mean if there’s no SCOTUS and they have majority control of the house and senate they can effectively pass whatever laws they want unopposed, no matter what their constitutionality is. I’m sure the dems would do the same thing in their position. That needs to be fixed. Partisanship shouldn’t be able to effectively sabotage an entire branch of the government for political gain.

    • If Sec. Clinton wins, I expect the Senate to confirm Judge Garland in the lame duck session. They know Pres. H. Clinton would choose an even-more left-leaning nominee than Garland. Trying to leave that vacancy for four years would open them up to an intergovernmental lawsuit about denying a republican (little r) form of government to the People. It would go to the D.C. Circuit, where Garland sits as Chief. Which creates its own problem, as Garland would have to recuse himself, leaving the same potential for a tie decision as we now have with SCOTUS. The Senate Republicans are making a mess,and they know it, but they just can’t help themselves. The Senate is so close to tipping to the Democrats and their Republican constituents are loving the standoff.

  • Was Gavin Grimm’s case one of the ones that are affected?

    Grimm is a TS high school student from Virginia who sued over being forced to use the girl’s room at school.

  • it is important that our community and the American people truly understand what is on the line in this election– it is our right to live free of discrimination in housing , employment, public accommodations, and education. And, it is whether or not we have a right to legal recourse when discrimination does occur. It is our very lives on the line! It is the lives of all ligbt people, all brown, black, and red people, all religious minorities, all women– your mother, your aunt , your sister… We have to unite around the one candidate and party that believes every one of us should have a place in our America. Please vote as if your life depends on it, because it does.

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