Yesterday, in a landmark ruling, a federal appellate court decided that under Title IX a transgender student can challenge a school board policy that limits bathroom and locker room access based on biological sex. The United States Court of Appeals for the Fourth Circuit deferred to guidance from the Department of Education’s Office for Civil Rights (OCR) that “[w]hen a school elects to separate or treat students differently on the basis of sex. . . a school generally must treat transgender students consistent with their gender identity.” The decision is important for school districts grappling with this issue, both nationwide and in Illinois.
The Fourth Circuit decision, G.G. v. Gloucester County School Board, centered around the request of G.G., a high school student whose birth-assigned sex is female but whose gender identity is male, to use the boys’ restrooms in his Virginia high school. School officials initially granted G.G.’s request, and he used the boys’ restrooms without incident for approximately seven weeks. After some community members raised privacy concerns on behalf of other students, the school board passed a resolution limiting the use of male and female restrooms and locker room facilities based on biological sex. The policy provided transgender students the option of using private facilities.
G.G. sued in federal court, and the federal trial court rejected G.G.’s request that he be allowed to use the boys’ restroom on an interim basis while the trial court considered the lawsuit. The federal trial court also rejected G.G.’s claim that the board violated Title IX of the Education Amendments Act of 1972, which prohibits discrimination based on sex. The trial court noted that the regulations implementing Title IX allow restrooms to be separated by “sex.” Because the board’s rule was based on biological sex, not gender, the trial court held that it did not violate Title IX.
On appeal, the Fourth Circuit Court of Appeals, which has jurisdiction over Maryland, North Carolina, South Carolina, Virginia, and West Virginia, reversed the lower court’s dismissal of G.G’s Title IX claims and sent the case back to the lower court. On the Title IX claim, the appellate court explained that although the Title IX regulation on sex-separated facilities may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms. Because the appellate court found the regulation to be ambiguous, it looked to and relied on a 2015 opinion letter from OCR, the agency tasked with enforcing Title IX, to G.G. in which OCR interpreted the Title IX regulation. OCR stated in the 2015 opinion letter that when students are separated by sex, transgender students should generally be treated based on gender identity. Finding the interpretation of OCR controlling and noting that in a case like this, where there is no constitutional challenge to the regulation or agency interpretation, the weighing of privacy interests or safety concerns—fundamentally questions of policy— is a task committed to the agency, not to the courts, the appellate court reversed the dismissal of the student’s Title IX claim.
The decision includes a lengthy dissenting opinion that is highly critical of the majority opinion. The dissenting opinion states that the majority’s reasoning, which, taken to its logical end, might require schools to allow a biological male student who identifies as a female to use not only the girls’ restrooms, but also locker rooms and shower facilities, “completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes.” Citing a number of cases recognizing a right to bodily privacy, the dissent concludes that an individual “has a legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not exposed to persons of the opposite biological sex.” Further, the dissent opines that “[a] biological male identifying as female could hardly live in a girls’ dorm or shower in a girls’ shower without invading physiological privacy needs, and the same would hold true for a biological female identifying as male in a boys’ dorm or shower.”
This decision comes amidst a recently intensified national debate following the enactment of a North Carolina law limiting bathroom use for transgender students, and proposed legislation with similar restrictions in other states, including a controversial Illinois bill. The ruling is also unique because the appellate court granted substantial deference to guidance by OCR that was issued without being subject to the notice and opportunity to comment that is required for administrative rulemaking. Especially in a climate in which many, including the National School Boards Association, have criticized the process used by OCR in issuing guidance on a wide range of educational issues, this decision is highly significant and will likely spark further debate.
Because the appellate court’s ruling only directly applies to five states—and, as the appellate court recognized, Congress or a future administration may choose to take a different path on the issue—the case leaves considerable uncertainty about the rights of transgender students and the responsibilities of school districts in this realm. Despite this uncertainty, our experience is that school districts are navigating these issues successfully by working closely with transgender students and their families as well as the broader school community, and school districts should continue to do so, keeping this decision in mind.