On October 28, 2016, the U.S. Supreme Court granted certiorari in a case involving a dispute between a transgender student and a Virginia school board over school bathroom access, Gloucester County School Board v. G.G. This is just one of many cases seeking to clarify the scope of legal protections for transgender individuals and the authority of lawmakers and administrative agencies to dictate the same, but it signals that the Supreme Court may finally provide the precedent many have been awaiting on this rapidly evolving, controversial civil rights issue.
At the heart of the Gloucester case is the application of Title IX’s prohibition on sex discrimination to transgender students. Title IX of the Education Amendments of 1972 and its implementing regulations prohibit sex discrimination in educational programs and activities receiving federal financial assistance. See 20 U.S.C. § 1681 et seq. In the school context, Title IX guarantees all students the right to an opportunity to learn and participate in school activities in an environment free from discrimination. Title IX’s implementing regulations prohibit school districts from engaging in differential or adverse treatment on the basis of sex; treating one student differently from another in determining whether that student satisfies any requirement or condition for the provision of any aid, benefit or service; subjecting any student to separate or different rules of behavior, sanctions or other treatment; or otherwise limiting any person in the enjoyment of any right, privilege, advantage or opportunity. However, Title IX’s implementing regulations specifically permit a school to “provide separate toilet, locker room, and shower facilities on the basis of sex,” provided the facilities provided for students of one sex are comparable to the facilities provided to students of the other sex. See 34 C.F.R. § 106.33.
Notably absent from Title IX and its implementing regulations is a reference to “gender identity” or transgender status, but administrative agencies at the state and federal level have in recent years interpreted Title IX’s prohibition on sex discrimination to encompass discrimination on the basis of gender identity, including transgender status. See U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter on Transgender Students (May 13, 2016); New York State Educ. Dep’t, Transgender and Gender Nonconforming Students Guidance Document (July 2015); Resolution Agreement, In re Arcadia Unified School Dist., OCR Case No. 09-12-1020 (July 24, 2013).
In decisions pre-dating Gloucester, some courts have also held that claims of Title IX sex discrimination based upon transgender status are sufficient to survive a motion to dismiss. See, e.g., Kastl v. Maricopa County Community College Dist., 2004 WL 2008954 (D. Ariz. June 3, 2004), aff’d, 325 Fed. App’x 492 (9th Cir. 2009) (denying motion to dismiss Title VII and Title IX sex discrimination by transgender plaintiff who was allegedly denied access to restrooms); see also Pratt v. Indian River Central School Dist., 803 F. Supp. 2d 135 (N.D.N.Y. 2011) (denying motion to dismiss Title IX claims of gay male student because harassment complaint based on nonconformity of sex stereotypes is recognized under Title IX and the Equal Protection Clause); Montgomery v Local School District No. 709, 109 F. Supp 2d 1081 (D. Minn. 2000) (action against a school district under Title IX and the federal Constitution based on failure to prevent student-on-student harassment of male student because of his gender and perceived sexual orientation).
Gloucester involves a transgender (female-to-male) student, G.G., who, at the beginning of his sophomore year of high school, sought to use the boys’ bathroom at school, among other accommodations for his transition, including changing his records to match his male name, and being addressed by his male name / male pronouns. G.G. also completed his P.E. class at home, rather than at school, so that he did not have to use the school’s locker room. G.G. first used the school nurse’s bathroom, but eventually requested to use the boys’ bathroom, rather than a separate bathroom. School administrators allowed G.G. to use the boys’ bathroom, but after parent and community complaints, the school board adopted a policy limiting access to restroom and locker facilities “to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.” The school board then installed three unisex bathrooms at the high school that were open to all students.
Upon a request for review of the school board’s new policy, the U.S. Department of Education’s Office for Civil Rights (OCR) issued an unpublished opinion letter (quoted in the Gloucester papers) stating, in relevant part:
The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.
G.G. then sued the Gloucester school board, alleging the restroom policy violated Title IX and the Equal Protection Clause of the U.S. Constitution. G.G. did not prevail at the district court level. The district court dismissed G.G.’s Title IX claims, finding that the exclusion from the boys’ bathroom based on his gender identity did not constitute sex discrimination under Title IX, as the Department of Education’s Title IX regulations expressly permitted separate restroom facilities based on sex, thereby precluding G.G.’s Title IX claim. The district court declined to defer to the U.S. Department of Education’s administrative interpretations post-dating the Title IX regulations that would have supported G.G.’s claim, finding that doing so would essentially set a precedent by which agencies could adopt new rules without the formal rulemaking process.
G.G. appealed to the U.S. Court of Appeals for the Fourth Circuit, which held that G.G. stated a valid Title IX sex discrimination claim based on gender identity after the school board barred him from using boys’ restroom facilities. See G.G. v. Gloucester County School Bd., No. 15-cv-2056 (4th Cir. April 19, 2016). The panel deciding the G.G. v. Gloucester case determined that the U.S. Department of Education’s interpretation of Title IX and its implementing regulations (which were ambiguous on their face with respect to transgender students) should be given deference under the Auer doctrine (see Auer v. Robbins, 519 U.S. 452 (1997)) unless clearly erroneous or inconsistent with the text of the regulation, which, in the panel’s opinion, it was not. The panel determined that the Department of Education’s position that transgender individuals should be permitted to access the restroom corresponding to their gender identities was controlling, and remanded the case to the trial court for further proceedings. The school board requested a rehearing en banc, but that request was denied.
In the middle of this, the U.S. Department of Education and the U.S. Department of Justice issued a comprehensive guidance letter outlining their position on the application of federal civil rights protections to transgender students, which in their opinion includes the following responsibilities for schools:
- Providing a safe and nondiscriminatory environment for all students, including transgender students;
- Treating students consistent with their gender identity;
- Allowing transgender students to participate in sex-segregated activities and access sex-segregated facilities consistent with their gender identity; and
- Protecting and treating transgender students’ privacy in their education records consistent with the Family Educational Rights and Privacy Act (FERPA).
The Gloucester school board sought to stay the Fourth Circuit’s decision while it completed its petition for certiorari to the Supreme Court. The Supreme Court granted the request, which had the effect of stopping G.G. from using the boys’ restroom at school for the 2016–17 school year. The parties submitted their briefs to the Supreme Court this fall, and on October 28, 2016, the Supreme Court decided it would review the following questions:
- If the Court’s Auer doctrine is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?
- With or without deference to the agency, should the Department of Education’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?
In the meantime, the results of last week’s election have many questioning whether a new administration will continue the interpretation that will be reviewed by the Supreme Court later this term.
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