In the case of Carcaño v. McCrory, No. 1:16cv236 (M.D.N.C. Aug. 26, 2016), a federal district court in North Carolina found that a 2015 United States Department of Education (“Department”) opinion letter, which directed schools to provide transgender students equal access to locker rooms and shower facilities consistent with their gender identities, must “be accorded controlling weight.”
Carcaño involves a complex dispute between the City of Charlotte and North Carolina over gender expression. Added to the complexity is the Department’s emerging position that “sex” as defined in Title IX of the Education Amendments of 1972 (“Title IX”) encompasses the concept of gender identity. Needless to say, the dispute sparked multiple overlapping federal lawsuits, involving a lot of litigants, and even more attorneys.
Briefly stated, the dispute began when the City of Charlotte passed an ordinance which extended non-discrimination protection to gender identity without containing any exceptions for bathrooms, showers, or similar facilities. The ordinance provoked a swift reaction at the state level. The North Carolina General Assembly quickly convened a special session and passed HB2, which preempted the Charlotte ordinance. While the precise contours of HB2 are beyond the scope of this blog, the relevant provision for school leaders is a section that requires public agencies, including local boards of education, to ensure that every multiple occupancy bathroom or changing facility is designated for use by persons based on their biological sex –with biological sex defined as the condition of being male or female as stated on a person’s birth certificate.
This provision prohibits public agencies, such as the University of North Carolina (“UNC”), from providing any accommodation to its transgender students other than single-user facilities. This placed UNC, which previously provided such accommodations, in a difficult position. On the one hand, HB2 expressly prohibits UNC from providing transgender students any accommodations. On the other hand, and as stated above, the Department has taken the position that the prohibition against discrimination on the basis of sex in Title IX requires schools to provide transgender students equal access to educational programs and activities. Please click here to view our prior blog post regarding the Department’s position.
As explained in a prior blog post, a federal appellate court in the Fourth Circuit already granted the Department’s position controlling weight – at least with respect to access to bathrooms. Please click here to read more about that decision. However, in granting the Department’s position controlling weight regarding bathroom access, the federal appellate court in the Fourth Circuit did not address whether its decision extended equal access to locker rooms, shower facilities, housing, athletic teams, or single-sex classes, which is the Department’s position.
The North Carolina federal district court clarified that the Department’s position – which the federal appellate court in the Fourth Circuit granted “controlling weight – explicitly includes ‘locker rooms’ and ‘shower facilities’ among the ‘situations’ in which students must be treated consistent with their gender identity.” As a result, the Department’s position regarding equal access to locker rooms and shower facilities should also be granted controlling weight according to the federal district court.
While Ohio is not one of the states within the jurisdiction of the North Carolina federal district court, or the Fourth Circuit federal appellate court, we recommend that you contact legal counsel or McGown & Markling for advice on how to proceed should these complicated issues arise.
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.