On April 19, 2016, the Fourth Circuit Court of Appeals issued an opinion that is likely to have a significant impact on the rights of transgender students. In G.G. ex rel. Grimm v. Gloucester County School Board, No. 15-2056 (4th Cir. April 19, 2016), a divided panel of the Fourth Circuit ruled that a transgender student could maintain a claim under Title IX of the Education Amendments of 1972 (Title IX) − which generally prohibits discrimination on the basis of sex in federally funded education programs − against a school district that refused to give him access to the bathroom that corresponds with his gender identity.
A transgender student in a rural Virginia high school and his parent brought claims against the Gloucester County School Board under Title IX and the Equal Protection Clause of the Fourteenth Amendment after the board adopted a policy that restricted bathroom and locker room use based on students’ “biological gender” and provided “alternative appropriate facilit[ies]” for students with “gender identity issues.” According to the decision, the student is a transgender boy who has been diagnosed with gender dysphoria and who lives all aspects of his life as a boy. 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.
Fourth Circuit Decision
In a published opinion, the Fourth Circuit reversed the district court’s decision on the student’s Title IX claim. The court observed that the U.S. Department of Education’s regulations permit schools to offer “separate toilet, locker room, and shower facilities on the basis of sex.” 34 C.F.R. § 106.33. The department’s own interpretation of the regulation, however, dictates that when a school separates students on the basis of sex, the school “generally must treat transgender students consistent with their gender identity.” The Fourth Circuit gave controlling weight to the department’s interpretation after finding that the regulation was ambiguous, and concluded that “[t]he Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual ... the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.”
In reaching its decision, the court examined the meaning of the word “sex.” It drew on the definitions of “sex” in dictionaries from the time when the regulations were adopted, and noted that while a person’s reproductive organs are an important part of sex, “the definitions also suggest that a hard-and-fast binary division on the basis of reproductive organs ... [is] not universally descriptive.” The court ultimately concluded that “the Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects ... included in the term ‘sex.’”
The Fourth Circuit also vacated the district court’s denial of the student’s request for a preliminary injunction − which would have allowed him to use the boys’ restroom while the case was pending − because the district court refused to consider some of the student’s evidence about the harm he would suffer in being excluded from the boys’ restroom. Judge Davis went a step further in his concurrence, saying that the district court could have granted the preliminary injunction because the student demonstrated that he experiences daily psychological harm by being excluded from the boys’ restroom. In discussing public interest considerations in his analysis, Judge Davis observed that “the weight of authority establishes that discrimination based on transgender status is already prohibited by the language of federal civil rights statutes,” and concluded that “denying the requested injunction would permit the Board to continue violating [the student’s] rights under Title IX.”
With respect to contrary opinions, Judge Niemeyer dissented, saying that the majority’s holding “completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes.” Judge Niemeyer took a more traditional view of the word “sex” in Title IX and the regulations, and said that enforcing separation of students based on gender identity would be “virtually impossible.”
The decision in Grimm marks the first time that a federal court of appeals has held that a transgender student could state a claim under Title IX when he alleges that his school denied him access to the bathroom that corresponds with his gender identity. In addition, implicit in the court’s ruling is the conclusion that a recipient of Title IX funding could violate Title IX and the Department of Education’s regulations when it refuses a transgender student access to the bathroom that corresponds with his gender identity. Based on the reasoning of the court’s opinion, it appears likely that federal courts in the Fourth Circuit will uphold the Department of Education’s interpretation that federally funded schools must treat transgender students consistent with their gender identity.
The Fourth Circuit grounded its decision in administrative law and deference to agency interpretations, but the court’s discussion of the meaning of the word “sex” may have also opened the door to larger discussions about that term’s use. For example, the court itself noted the similarities between Title IX and Title VII of the Civil Rights Act of 1964 − which generally prohibits employment discrimination on the basis of certain protected classifications − saying that courts “look to case law interpreting Title VII” when dealing with Title IX claims. Thus, the decision in Grimm may also impact how courts view other statutes and regulations that use the word “sex” as applied to transgender individuals.