Two recent federal court rulings add to the growing body of decisions that find legal protections for transgender students in federal antidiscrimination laws and that run counter to the views emerging from President Donald Trump’s administration on the issue.
In late May, a federal appeals court refused to block a Pennsylvania school district’s policy of permitting transgender students to use the restrooms or locker rooms consistent with their gender identity. One unusual aspect of the case involving the Boyertown Area School District is that a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled unanimously from the bench, about a half hour after hearing oral arguments on May 24, to reject an injunction sought by a group of students who contend the district’s pro-transgender policy harms their privacy.
The court issued a brief written order the same day stating that a formal opinion would follow but that it was embracing the reasoning of the federal district judge in the case, who had rejected the privacy arguments of the students opposing the Boyertown district’s transgender-inclusive policy.
Earlier that week, on May 22, a federal district judge in Virginia ruled in favor of a female-born transgender teenager, Gavin Grimm, who challenged his school district’s policy of barring him from using the restrooms for males.
“This court joins [other federal district and appellate courts] in concluding that claims of discrimination on the basis of transgender status are per se actionable under a gender stereotyping theory under Title IX” of the Education Amendments of 1972, said the decision by U.S. District Judge Arenda L. Wright Allen of Norfolk, Va., in the case involving the Gloucester County, Va., school district.
The judge also found that the 14th Amendment’s guarantee of equal protection of the law applied to transgender students.
“Since the new administration came into office in 2017 and began revoking guidance [on transgender legal protections under Title IX], court after court has held that the statute itself protects trans people and LGB [lesbian, gay, and bisexual] people from discrimination, and that you don’t need that agency guidance,” said Joshua A. Block, a senior staff attorney with the American Civil Liberties Union’s LGBT and HIV Project, who represents Grimm.
Seeking Further Clarification
The Trump administration did not file briefs in the Boyertown or Gloucester County cases (nor in other pending transgender cases). But a range of actions since Trump took office in January 2017 have fueled the view that the administration does not support an interpretation of Title IX that covers transgender discrimination.
U.S. Secretary of Education Betsy DeVos told a House education committee hearing on May 22 that court precedent was mixed on the issue of legal protections for transgender students and that neither the U.S. Supreme Court nor Congress had settled the question.
“That is not an area where law has been clarified,” DeVos said. “I am not going to make up law from the Department of Education.”
In early 2017, the Trump administration rescinded Education Department guidance issued under President Barack Obama that interpreted the department’s Title IX regulations to require schools to allow transgender students to use the restroom and locker rooms consistent with their gender identity. This past February, the department indicated that its office for civil rights will no longer investigate complaints from transgender students related to restroom discrimination.
However, DeVos has repeatedly said that all students, including transgender students, deserve protection from bullying and unfair treatment in schools.
While the Trump administration has not yet fully formalized its views on the protection of transgender students under Title IX, there are other clues about the direction it is headed.
Wave of Rulings
Just as there has been much litigation over Title IX and transgender students in recent years, there has been a wave of lower court rulings interpreting the protection against sex discrimination in employment in Title VII of the Civil Rights Act of 1964 to cover cases of bias against gay workers.
In a case involving a gay employee of a New York state skydiving company who alleged discrimination by his employer, the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled in February that “sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.”
The U.S. Department of Justice under Trump filed a friend-of-the-court brief in the case arguing that discrimination based on sexual orientation is not sex-based bias covered by Title VII.
“An employer who discriminates based on sexual orientation alone does not treat similarly situated employees differently but for their sex,” the administration’s brief argued. “Gay men and women are treated the same, and straight men and women are treated the same.”
The skydiving company on May 30 filed an appeal with the Supreme Court. The legal analysis of sex discrimination in Title VII has been influential for those courts that have ruled on Title IX and transgender students as well.
In ruling in the Grimm case in May, Judge Wright cited Title VII more than 20 times as she held that Title IX prohibition against discrimination “based on sex” in federally funded education programs encompasses bias against transgender students.
“Allegations of gender stereotyping are cognizable Title VII sex discrimination claims and, by extension, cognizable Title IX sex discrimination claims,” Wright said.
The ACLU’s Block said that while Wright’s decision clears the way for a trial in Grimm’s case, the main issue of dispute between the parties is the legal question that the judge decided—that Title IX protects transgender students against discrimination.
While Grimm’s case is an example of a transgender student challenging what he views as an oppressive school policy, the Pennsylvania case is an example of the main other type of lawsuit in this area: one brought by students claiming that pro-transgender school policies harm their privacy to use facilities among peers of their same birth gender.
“Sex in federal law has always referred to the biological difference between men and women,” said Christiana Holcomb, a lawyer with Alliance Defending Freedom, a Scottsdale, Ariz.-based legal organization that backs several student privacy lawsuits around the country. “Those courts that have ruled to the contrary are out of step with the plain meaning of Title IX.”
Holcomb and the ADF are representing four students in the Boyertown district who object to a policy, adopted during the 2016-17 school year, of allowing transgender students to use facilities consistent with their gender identity.
In court papers, the ADF argued that the school district’s policy favored “a subjective continuum of genders” that “eliminates the law’s longstanding respect for the anatomical differences between the sexes.”
“We’re trying to protect the privacy rights of every student, including transgender students and our clients,” said Holcomb. “School districts have a duty to protect the privacy and dignity of everyone in their schools.”
Mara Keisling, the executive director of the National Center for Transgender Equality, an advocacy group based in Washington, said “the trends in the courts are absolutely clear: They are ruling again and again with us.”
“School districts have to deal with the reality that trans students exist,” she said. “They have to operate within the reality that there is a Title IX, and it’s very, very clear based on decision after decision that trans people are covered by it. Most schools are doing the right thing.”
