Ruling Backs Ed. Department Guidance on Transgender Bathroom Choice

By Mark Walsh — April 20, 2016 3 min read
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A federal appeals court has ruled that courts must give deference to the U.S. Department of Education’s recent guidance that public schools must treat transgender students in conformity with the students’ gender identity.

The panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled 2-1 to revive a lawsuit by a transgender boy at Gloucester (Va.) High School who was denied permission to use the boys’ restrooms.

The student is identified as G.G. in the opinion, but as Gavin Grimm in news accounts, including by Education Week‘s Evie Blad in her Rules for Engagement blog. Grimm is a junior at the high school who was born female but now identifies as male and has undergone hormone therapy.

The Gloucester County school board voted 6-1 in December 2014 to adopt a restroom and locker room policy that requires boys’ and girls’ facilities to be limited to use to “corresponding biological genders,” but that students with gender identity issues be provided separate, private facilities.

The student sued the school district last year, seeking an injunction allowing him to use the boys’ restrooms. He does not participate in physical education and is not seeking to use boys’ locker rooms.

The suit contends that the board’s policy violates Title IX of the Education Amendments of 1972, as interpreted by the recent Education Department guidance. Title IX bars discrimination based on sex in federally funded schools.

A federal district court rejected Grimm’s suit, ruling that Title IX does not protect against discrimination based on gender identity or sexual orientation.

In appealing to the 4th Circuit, Grimm was supported by the U.S. Department of Justice, which argued for the Education Department’s interpretation of Title IX in documents issued in late 2014 and early 2015 as requiring schools to provide transgender students access to restrooms consistent with their gender identity.

In its April 19 decision in G.G. v. Gloucester County School Board, the 4th Circuit court held 2-1 that the Education Department’s interpretation of its own formal Title IX regulations—issued in 1980—was due deference because the earlier regulations were ambiguous on transgender issues.

“The regulation is silent as to which restroom transgender individuals are to use when a school elects to provide sex-segregated restrooms, and the [Education] Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects ... included in the term ‘sex’,” said the majority opinion by Judge Henry F. Floyd.

The majority agreed with the Justice Department that only recently have some school districts sought to use the decades-old Title IX guidance to support policies restricting bathroom use by transgender students to their biological sex.

“G.G. claims that he is entitled to use the boys’ restroom pursuant to the department’s interpretation of its regulations implementing Title IX,” the majority said. “We have carefully followed the Supreme Court’s guidance in [cases on deference to agency actions] and have determined that the interpretation contained in the [office for civil rights] letter is to be accorded controlling weight.”

The court ordered the case returned to the district court so that court could consider Grimm’s request for an injunction under the proper standard. The majority also ordered the lower court to consider some evidence presented by the student that the lower court had excluded.

Judge Paul V. Niemeyer dissented, writing that under the majority’s holding, a public high school “must now allow a biological male student who identifies as female to use the girls’ restrooms and locker rooms and, likewise, must allow a biological female student who identifies as male to use the boys’ restrooms and locker rooms. This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes.”

A version of this news article first appeared in The School Law Blog.