Barring a transgender student who identifies as a boy from using the boy’s bathroom at school is illegal discrimination under Title IX, attorneys with the U.S. Departments of Justice and Education said in an amicus brief filed Wednesday.
The federal agencies have taken such a position in the past, weighing in in other cases related to the rights of transgender students at school. The Obama administration even previously weighed in on the case in question, which involves a 16-year-old transgender student who identifies as a boy and attends schools in Gloucester County, Va.
But the brief the federal agencies filed this week applies to an appeal of a lower court’s decision in that case. If the student wins at the appeals level, his case could set precedent for lower court rulings in all states covered in the U.S. Court of Appeals for the Fourth Circuit.
“A critical stage of gender transition is the ‘real-life experience,’ during which a transgender person experiences living full-time as the gender to which he or she is transitioning,” the federal agencies wrote in their amicus brief. “This experience necessarily includes using the sex-segregated facilities (e.g., restrooms) corresponding with that gender.”
While Title IX doesn’t explicitly mention sexual orientation or gender identity, the Obama administration has said in civil rights guidance and in court briefs that the law applies to those issues. But decisions about allowing students to use single-sex facilities like restrooms and locker rooms that match their gender identities are still difficult for some school districts, particularly because there aren’t established federal legal precedents on the issue, attorneys have said.
An Illinois school district recently made headlines when it said it would fight the U.S. Department of Education’s office for civil rights on the issue. That situation hasn’t been resolved, a representative for the district said this week.
But the education and justice department lawyers said in their brief that the law is clear on the issue.
The student plaintiff in the Virginia case, who has been formally diagnosed with gender dysphoria, goes by male pronouns, and takes hormone treatments, initially used a restroom in the nurse’s office at school but eventually found that option “stigmatizing and inconvenient, as well as unnecessary, as his teachers and peers generally respected that he is a boy,” the brief says.
The school allowed him to use the boys restroom for nearly two months before it changed its policies in response to complaints, the brief says.
The district’s restroom policy denies the student “a benefit that every other student at his school enjoys: access to restrooms that are consistent with his or her gender identity,” the brief says. “Whereas the policy permits non-transgender students to use the restrooms that correspond to their gender identity (because their gender identity and ‘biological gender’ are aligned), it prohibits [the student] from doing so because, although he identifies and presents as male, the school deems his “biological gender” to be female. ... Treating a student differently from other students because his birth-assigned sex diverges from his gender identity constitutes differential treatment on the basis of sex under Title IX.”
A lower court judge previously dismissed the student’s Title IX claim and rejected his request for a preliminary injunction while the court considered other claims in the case. The student has since asked the appeals court for a new judge, citing the original judge’s claim that gender dysphoria is a “mental disorder.”
Read the whole amicus brief regarding transgender student rights here.
A version of this news article first appeared in the Rules for Engagement blog.