In a sweeping decision, an Ohio federal district court ordered a local school district to treat a transgender student “as the girl she is, including referring to her by female pronouns and her female name and allowing her to use the girls’ restroom.” Bd. of Educ. of the Highland Local School Dist. v. United States Dept. of Educ., S.D.Ohio No. 2:16-CV-254 (Sept. 26, 2016).
The case involves an eleven-year-old transgender girl who sought to use the girls’ restroom at her elementary school. After the school district prohibited her from doing so, the Office of Civil Rights of the Department of Education (“Department”) found that this policy discriminated against the student on the basis of sex in violation of Title IX of the Education Amendments of 1972 (“Title IX”). The school district filed suit in federal court seeking to prevent the Department from enforcing the Department’s interpretation of Title IX. The student joined the lawsuit, requesting that the court prevent the school district’s policy of denying bathroom access and order the school to permit her to use the girls’ restroom.
The Ohio federal district court first addressed whether the school district excluded the student from the girls’ restroom “on the basis of sex,” which would be a violation of Title IX. The Ohio federal district court found that the term “sex” in Title IX and its implementing regulations regarding sex-segregated bathrooms and living facilities is ambiguous when applied to transgender students. As a result, the Ohio federal district court deferred to the Department’s guidance regarding the term.
As we reported in a prior blog, the Department issued significant new guidance on the rights of transgender students in a May 13, 2016 Dear Colleague Letter. Specifically, the Department found that gender identity is to be treated as “sex” for purposes of Title IX and schools are required to treat students consistent with their gender identity, not biological sex. Please click here to view our prior blog post regarding the Department’s position.
The Ohio federal court also addressed the student’s equal protection claim. The Ohio federal court found that the school district “failed to show that [its] discriminatory policy [regarding bathroom access] is substantially related to their interests in [protecting the students’] privacy or safety.” Significantly, the Ohio federal court found that transgender status is a “quasi-suspect classification” subject to “heightened scrutiny” under the Equal Protection Clause of the United States Constitution. This determination is significant as no known Ohio federal court has extended heightened scrutiny to transgender individuals as a suspect class. Indeed, the United States Supreme Court declined to make a classification determination regarding sexual orientation in a recent ruling regarding gay marriage.
The Ohio federal court also addressed a Texas federal district court that recently issued a broad nationwide order prohibiting the Department from enforcing its guidance regarding Title IX. The Ohio federal court found that “[b]ecause Ohio was not a party to the Texas litigation, and because this litigation was initiated before the Texas court issued its [order], the [order] does not apply here.” To read more about the Texas case, please click here.
The school district immediately appealed the Ohio federal district court’s decision. Please check back with our blog for updates regarding this rapidly emerging area in school law.
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.