In a potential landmark case, the Fourth Circuit Court of Appeals (“Fourth Circuit”) found that Title IX of the Civil Rights Act of 1964 (“Title IX”) requires school districts to allow transgender students to use school bathrooms in accordance with their gender identity. While Ohio is not one of the states within the Fourth Circuit’s jurisdiction, the case is important for Ohio schools because the Fourth Circuit upheld the position of the United States Department of Education (“Department”) regarding transgender students’ access to restroom facilities.
The case of G.G. v. Gloucester Cty. School Bd., Fourth Cir. No. 15-2056, involves a 16-year-old transgender student (“G.”) who identifies as a boy but whose sex assigned to him at birth was female.
“Gender identity” is a personal conception of self, referring to one’s sense of self as belonging to a particular gender. Typically, people who are designated as females based on their external anatomy identify as girls or women, and people who are designated as males based on their external anatomy identify as boys or men. For transgender individuals, however, the sense of self – i.e., gender identity – differs from the sex designated at birth.
G. is diagnosed with Gender Dysphoria – a medical condition codified in the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) and International Classification of Diseases-10 that is characterized by the distress caused by the discrepancy between one’s gender identity and the sex assigned at birth. The World Professional Association for Transgender Health (“WPATH”) has established Standards of Care for individuals with Gender Dysphoria. Under WPATH Standards, social role transition – living one’s life in accordance with gender identity – is an important component of treatment for Gender Dysphoria.
Consistent with WPATH Standards, G. lives all aspects of his life as a boy. He is undergoing hormone therapy; he has legally changed his name; and his state identification card identifies him as male. In every context outside school, he uses the boys’ restrooms.
Before beginning his sophomore year, G. and his mother informed officials at Gloucester High School that G. is a transgender boy. Gloucester County School Board (“Board”) officials were supportive of G.’s revelation that he was a transgender student. Officials agreed to refer to G. using his new name, changing his name in school records, and using the male pronoun. With the permission of school administrators, G. also used the boys’ restrooms at school for seven weeks.
G.’s use of the boys’ restroom, however, excited the interest of others in the community, some of whom contacted the Board seeking to ban G. from continuing to use the boys’ restroom. In response, the Board passed a new policy that requires students to use the restroom and locker room facilities that correspond to their biological sex. In addition to passing this policy, the Board provided three-unisex, single-stall restrooms for any student to use.
Believing that using the girls’ restroom would cause him psychological distress and be incompatible for his treatment for Gender Dysphoria, G. filed a lawsuit and sought a court order prohibiting the Board from continuing the policy.
At the heart of this case “is whether Title IX requires schools to provide transgender students access to restrooms congruent with their gender identity.” G.G. v. Gloucester Cty. School Bd., 2016 U.S. App. LEXIS 7026, * 6. Title IX prohibits any educational program or activity receiving Federal financial assistance from excluding a person from participation in, denying a person the benefits of, or subjecting a person to discrimination “on the basis of sex.”
Despite this restriction, the United States Department of Education’s (“Department”) regulations implementing Title IX permit schools to provide “separate toilet, locker room, and shower facilities on the basis of sex.” 34 C.F.R. § 106.33. This regulation serves as the focus of the dispute in the Gloucester case. The Department declared its position in a January 7, 2015 opinion letter that when schools “provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single–sex classes [* * *] a school must generally treat transgender students consistent with their gender identity.” The Board, however, asserted that this interpretation is incorrect and that the regulation explicitly permits school districts to pass policies restricting access to bathrooms and locker rooms based on the students’ biological sex.
The Gloucester court determined that “the Department’s interpretation of its own regulation, § 106.33, as it relates to restroom access by transgender individuals is entitled [* * *] deference and is to be accorded controlling weight in this case.” In following the Department’s interpretation of § 106.33, the court limited the impact of its decision. The Gloucester court did not make any sweeping decisions on constitutional grounds. Nor did the court address the issue of access to locker rooms, shower facilities, housing, athletic teams, or single-sex classes. And, because the court limited its decision to the Department’s current interpretation, the court explicitly acknowledged that “a subsequent administration may choose to implement a different policy, [and] Congress may also, of course, revise Title IX to explicitly prohibit or authorize the course chartered by the Department regarding the use of restrooms by transgender students.” Gloucester, 2016 U.S. App. LEXIS 7026, * 31.
The Gloucester decision immediately impacts the states within the jurisdiction of the Fourth Circuit – i.e., Maryland, North Carolina, South Carolina, Virginia, and West Virginia. However, the case also has a national impact on schools. As stated above, the Gloucester court validated the Department’s position regarding transgender students’ access to restroom facilities. Even before the court’s decision, the Department had been aggressively enforcing its interpretation of Title IX. The Department recently opened a probe against a Michigan school district for alleged discrimination against transgender students. The Department also threatened to revoke one school district’s federal funding unless a transgender girl was given access to the girls’ locker room.
On the other hand, at least 14 states are considering legislation that would restrict transgender students’ use of public school bathrooms and locker rooms to their biological sex. The impact that this legislation will have on the Department’s guidance is unclear. While Ohio is not one of the states currently considering legislation, at least one Ohio State Representative has stated that he would be interested in sponsoring such a bill.
Until a bill is passed into law, Ohio schools may be best served to adhere to the Department’s guidance.
To read this case, please click here.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.