After a three-judge panel on the 4th Circuit Court of Appeals ruled that a teenage girl in Virginia who now identifies as a male may use boys’ high school restrooms, the Gloucester County School Board appealed, and the case may now be headed to the U.S. Supreme Court.

Grimm has been using the boys’ restroom since 2014; parents of boys began complaining shortly afterward. The Gloucester County School Board originally proposed a compromise: that Grimm use a private, single-stall restroom. The school board had three separate restrooms built for this purpose. When Grimm ignored them, continuing to use the boys’ restrooms, the school board passed a policy banning her from them, sparking the lawsuit.

The full 4th Circuit panel of judges declined to reconsider the case, but agreed to a stay on the ruling, allowing an appeal to proceed to the U.S. Supreme Court. Since this has become a contentious issue around the country, resulting in divided decisions in different jurisdictions and questions of whether constitutional issues such as equal protection apply, there is a good chance the nation’s highest court will accept the case.

In April, a 3-judge panel on the 4th Circuit ruled in a 2-1 decision that Gloucester High School student Gavin Grimm was permitted to use male restrooms at the school, even though she was biologically female. The district court had originally ruled against her and her attorneys appealed to the circuit court.

The circuit court relied upon the Obama administration’s new interpretation of Title IX, an education law passed in 1972. Title IX was intended to enforce equality for women in educational institutions and merely states that schools can provide separate girls’ and boys’ facilities. It assumes the biological understanding of male and female. Obama recently decided to expand the Title IX’s definition of “sex” to include “gender identity” and therefore to require public schools to allow those who identify as transgender get to choose which restrooms they use in educational facilities.

Schools that do not comply with Obama’s directive will lose crucial Title IX federal funding. Texas and ten other states (Alabama, Arizona, Georgia, Louisiana, Maine, Utah, West Virginia and Wisconsin) recently filed lawsuits against the Obama administration, challenging the directive as an abuse of executive power since it did not go through Congress or the state legislatures.

Strangely, the 2-1 appeals court panel decision referenced a decision by late SCOTUS Justice Scalia — until his death arguably the most conservative justice on the court — in order to justify its decision that extra weight should be given to administrative agencies like the Education Department when they are interpreting their own regulations. Scalia, writing for the majority, held in the 1996 decision Auer v. Robbins that the U.S. Department of Labor was entitled to substantial discretion in determining the conditions for overtime-pay regulations. However, he backed off from this position in later years, due to his concerns about the growth of the administrative state.