U.S. Supreme Court may have to settle issue of transgender bathroom access |
On Board Online • September 5, 2016
By Eric D. Randall
Editor-in-Chief
In the wake of federal court rulings that have raised questions about the rights of transgender students, some school attorneys are hoping the U.S. Supreme Court weighs in.
"A decision from the High Court would help schools trying to navigate an unsettled national legal landscape," said Francisco Negron, general counsel for the National School Boards Association (NSBA). "The litigation around these issues often involves different students asserting competing federal constitutional rights."
The Buffalo Board of Education is among school boards currently struggling to craft policies on transgender students (that is, individuals whose gender identity does not correspond to their assigned sex at birth) that will withstand legal challenges and satisfy polarized members of the public.
On Aug. 23, a federal judge in Texas ruled that the Obama administration exceeded its authority when it threatened in a March "Dear Colleague" letter to withhold funding from school districts that fail to accommodate transgender students in specific ways.
Although the decision in State of Texas et al. v. United States of America, et al focused on a procedural matter, The New York Times described it as "a victory for social conservatives" who believe all students should use bathrooms that correspond to their assigned sex at birth.
In the case, legality of the administration's interpretation of Title IX of the U.S. Civil Rights Act of 1964 is being challenged by two school districts and 13 states (Alabama, Arizona, Georgia, Kentucky, Louisiana, Maine, Mississippi, Oklahoma, Tennessee, Texas, Utah, West Virginia and Wisconsin).
U.S. District Judge Reed O'Connor issued an injunction preventing federal officials from withholding federal Title IX monies or otherwise enforcing the requirements described in the "Dear Colleague" letter. The letter said districts should give students access to bathrooms that match their self-described gender identity; have staff members address them by the names and pronouns they prefer; and take other steps to ensure they are not discriminated against.
In his 38-page order, the judge said the Dear Colleague letter was the equivalent of a federal rule, and it's unenforceable because the government failed to solicit comments from the public and fulfill other steps in the federal rule-making process. O'Connor said his order should be considered effective nationwide.
"This unfortunate and premature ruling may, however, confuse school districts that are simply trying to support their students, including their transgender students," according to a joint statement issued by Lambda Legal, the American Civil Liberties Union and three other civil rights organizations. "So let us make it clear to those districts: your obligations under the law have not changed, and you are still not only allowed but required to treat transgender students fairly."
In a telephone interview with On Board, an attorney for Lambda Legal said that despite the "antics in Texas," there is no question of law that the Supreme Court needs to settle regarding the rights of transgender students in schools. "We think the law is already clear," said M. Dru Levasseur, national director of Lambda Legal's Transgender Rights Project. "Title IX is meant to protect individuals from discrimination."
Negron of NSBA disagrees. "The interpretation of Title IX's applicability to gender identity remains an unsettled question of law," he said. Also, he noted that some parents have asserted that their son or daughter's privacy rights are in jeopardy or that the educational process is being disrupted when transgender students use the bathroom or locker room that matches their gender identity. "Determining which rights prevail under the Equal Protection Clause of the 14th Amendment will likely survive for the Supreme Court," he said.
There has been speculation that the High Court may have signaled an interest in hearing a transgender rights case when it recently intervened in a Virginia case, G.G. v. Gloucester County School Board, in which a school board has refused to permit a transgender high school student to use the boys' bathrooms. The student won at the federal district court level, and a federal circuit court let that ruling stand.
But on Aug. 3, the U.S. Supreme Court granted an "emergency" stay to allow the school board to continue banning the student from using the boys' restroom at school. It was the first time the High Court had issued any kind of ruling on the issue of bathroom access and gender identity.
Jay Worona, NYSSBA's deputy executive director and general counsel, said that it is important for school board members to understand that regardless of how courts interpret the authority of the federal government to define the rights of transgender students, school districts in New York State must offer students the levels of protection that are required under state law.
He noted that school districts in New York State have an affirmative duty to provide transgender students with a school setting free of discrimination and harassment under the state Dignity for All Students Act, as interpreted by the State Education Department. (see story)