Interesting Title IX Development Regarding Transgender Students
This afternoon the United States Supreme Court stayed a lower court’s order preventing a Virginia school board from enforcing a policy that bans transgender students from using bathrooms and locker rooms that match their gender identity. Gloucester County School Board v. G.G. (see order at link below).
The case involves a Gloucester County high school student, who was born female but identifies as male. After being prohibited from using the boys’ restroom, the student sued the Gloucester County School Board, arguing the board’s bathroom policy is discriminatory against transgender students. The school board policy instead required the student to use “alternative, private” facilities, such as unisex, single-stall restrooms. The student sued alleging this policy violated Title IX.
In July 2015, a court in the Eastern District of Virginia dismissed the student’s Title IX claim and denied his motion for a preliminary injunction. In a published opinion, the Fourth Circuit reversed the district court’s decision on the student’s Title IX claim. In doing so, the Fourth Circuit deferred to the Department of Education’s interpretation of Title IX that, while schools can continue to segregate students on the basis of sex in limited circumstances, Title IX nevertheless generally requires schools to “treat transgender students consistent with their gender identity.” In another words, a “biologically female” student who identifies as male must be allowed to use male bathroom facilities and locker rooms.
The Supreme Court’s intervention today keeps the Gloucester County policy in place so that the Court can consider whether it will hear the case. If the Court decides not to hear the case, the Fourth Circuit’s decision will go into effect and the school board would be required to allow students to use school facilities in a manner consistent with their gender identity.
In addition to weighing in on whether Title IX protects students on the basis of gender identity, should the Supreme Court agree to hear the case, it very well may weigh in on another hot education law issue winding its way through the court system, namely, the weight to be given by courts to administrative guidance issued by the Department of Education, including its much discussed 2011 Dear Colleague Letter on sexual assault.
Stay tuned.