Federal appellate court is deferential to DOE's view on transgender rights

On Board Online • May 2, 2016

By Pilar Sokol
Deputy General Counsel

One of the more controversial questions in public education involves which bathrooms should be used by transgender students. Last year, the U.S. Department of Education (DOE) took the position that Title IX and its implementing regulations protect the right of transgender students to access such facilities consistent with the gender they identify with rather than the gender on their birth certificate.

While some have questioned that interpretation of law, it was recently deemed entitled to deference by a federal circuit court with jurisdiction in Virginia and four other states. The Fourth Circuit U.S. Court of Appeals determined that DOE's interpretation should have been treated with "appropriate deference" by a lower court when considering a lawsuit filed by a Virginia teenager.

The student involved in G.G. v. Gloucester County School Board has identified himself as Gavin Grimm, a junior at Gloucester High School in southeastern Virginia. Born a girl, the sixteen-year-old has identified as a boy since turning 15.

Gloucester County Public Schools (GCPS) officials allowed G.G. to use the boys restroom at the high school during his sophomore year, and he did so for seven weeks without incident. After hearing comments from the public at school board meetings, the school board adopted a policy that read:

Whereas the GCPS recognizes that some students question their gender identities, and

Whereas the GCPS encourages such students to seek support, advice, and guidance from parents, professionals and other trusted adults, and

Whereas the GCPS seeks to provide a safe learning environment for all students and to protect the privacy of all students, therefore

It shall be the practice of the GCPS to provide male and female restroom and locker room facilities in its schools and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate facility.

G.G. claimed, in part, that the board's adoption of the above policy discriminated against him in violation of Title IX, and sought injunctive relief that would allow him to use the boys' restroom while the litigation was pending.

Although a federal district court dismissed G.G.'s Title IX claim and denied his request for an injunction, a three-judge panel for the Fourth Circuit reversed the lower court's dismissal of the Title IX claim. It vacated the denial of G.G.'s request for injunctive relief and sent back the case for further proceedings consistent with the appellate court's decision.

Here are some questions and answers regarding the case:

Is the G.G. decision relevant to school districts in New York?

Generally, decisions by federal courts with no jurisdiction over New York have no binding effect on school districts in New York State. However, out-of-state court decisions can be influential to courts and administrative agencies elsewhere. That could be the case in New York, where the State Education Department (SED) last year issued a guidance citing DOE's interpretation that Title IX and its implementing regulations apply to prevent discrimination against transgender students on the basis of their gender identity. The Fourth Circuit's decision that DOE's interpretation is entitled to deference can be viewed as lending support for the statements in SED's guidance. The Guidance to School Districts for Creating a Safe and Supportive School Environment for Transgender and Gender Nonconforming Students that was issued by SED July 2015 is available at goo.gl/QZLe9c .

What is the significance of the Fourth Circuit's ruling that DOE's interpretation was entitled to deference?

Title IX prohibits discrimination on the basis of sex in education programs and activities that receive federal financial assistance. But its regulations allow "separate toilet, locker room and shower facilities on the basis of sex." Some, including the lower district court in the G.G. case, interpret this ambiguity to permit schools "to limit bathroom access 'on the basis of sex,' including birth or biological sex." DOE's position, on the other hand, is that schools that "separate or treat students differently on the basis of sex . generally must treat transgender students consistent with their gender identity." The Fourth Circuit's ruling affording deference to DOE's interpretation enables the resolution of questions regarding a transgender student's maleness or femaleness with reference to gender identity in cases involving access to sex-segregated facilities.

What will happen next with the case?

It has been reported that the school board is planning to ask the U.S. Court of Appeals for the Fourth Circuit to rehear the case en banc, i.e., by all the active judges on that circuit. On Board will report on any further developments.