Law & Courts

Schools Get Clarity on Transgender Student Restroom Access

By Evie Blad — April 22, 2016 5 min read
Gavin Grimm stands on the front porch of his home in Gloucester, Va., in 2015. The high school student, who was born female but identifies as male, says it's discriminatory to make him use the girls' room or a single-stall unisex restroom at school.
  • Save to favorites
  • Print

A federal appeals court’s decision to side with a transgender student who sued after his school restricted his restroom access could have far-reaching implications for schools around the country that have lacked legal clarity on this divisive issue.

The decision was called “a major turning point” by the Gay, Lesbian & Straight Education Network, and it could help set the tone for discussions about accommodations for transgender students nationwide, school law experts said.

A federal district court judge in Virginia erred when he did not defer to the U.S. Department of Education’s interpretation that a regulation created under Title IX of the Education Amendments of 1972 applies to gender identity, a three-judge panel of the 4th U.S. Circuit Court of Appeals, in Richmond, Va., said in a 2-1 decision this week.

The federal appellate panel sent the original case back to the lower court to reconsider its denial of a preliminary injunction that would allow Gavin Grimm, a high school student in Gloucester County, Va., to use the boy’s restroom at school. Grimm was born a girl but he now identifies as a boy and he has undergone hormone therapy. The Gloucester County school board voted unanimously to appeal the panel’s decision en banc to the full 4th Circuit, attorney David Corrigan said.

The ruling, the first by a federal appellate court on the issue, affirms the Obama administration’s position on allowing transgender students to use the restrooms and locker rooms that correspond with their gender identity, which it has increasingly asserted in legal briefs and civil rights agreements with school districts in recent years.

“It’s a case of the legal framework really lagging behind our rapidly changing social norms,” said Francisco Négron, general counsel for the National School Boards Association. “We expect more of this to come.”

Marching Orders

Suzanne Eckes, an education law professor at the Indiana University at Bloomington, said the ruling was part of a “general trend” of state courts and civil rights panels siding with transgender students on questions of school facilities access. If the ruling stands on appeal, and if another appellate court also upholds the Education Department’s interpretation of Title IX, it could set a pattern for schools to follow, she said. If not, the issue could be headed to the U.S. Supreme Court.

“For now, the states in that circuit have certainly been given their marching orders,” Eckes said.

The 4th Circuit notably includes North Carolina, which recently became the first state to require public schools to restrict restroom access for transgender students. Republican Gov. Pat McCrory said he will study the ruling, which could leave his state’s schools with the difficult decision of either violating the new state statute or violating Title IX at the risk of losing millions in federal funding.

The ruling cited precedents which said that, in cases where there is ambiguity in interpretation of a federal law, courts should give deference to an agency’s interpretation of those laws.

Title IX prohibits sex discrimination but, under a regulation, schools may have sex-segregated facilities. The school district had interpreted that regulation to refer to biological sex, while the federal Education Department has defined it as applying to gender identity. Because both could be viewed as valid interpretations of the law, the lower court was obligated to side with the department, the 4th Circuit panel wrote. “We conclude that the regulation is susceptible to more than one plausible reading because it permits both the board’s reading—determining maleness or femaleness with reference exclusively to genitalia—and the department’s interpretation—determining maleness or femaleness with reference to gender identity,” the ruling says.

Many state and local policymakers have disagreed with the Obama administration’s position. In November, the department’s office for civil rights found an Illinois district in violation of the law because it would not grant a transgender girl unrestricted access to the girls’ locker room. Under threat of penalties, including a possible loss of federal funding, the district agreed to allow the student to use the girls’ locker room.

Because the administration’s civil rights guidance does not carry the force of law, school law experts have waited for a federal court ruling on the issue to provide greater legal clarity for schools. To this point, transgender students have won court victories under state anti-discrimination laws. In states without such laws, schools have been uncertain about their obligations.

North Carolina Law

The ruling may come into play in the ongoing controversy over pending state bills that restrict restroom access for transgender students. North Carolina is the only state to have such a measure become law, and the ACLU of North Carolina has already challenged the measure in court on behalf of plaintiffs at the state’s universities, who argue that it violates Title IX.

South Dakota’s governor vetoed a similar measure earlier this year, and Tennessee lawmakers delayed a school facilities bill after the state’s attorney general said it may put schools at risk of violating federal law and losing millions in federal funding. Several other legislatures have considered similar proposals in recent years.

In an amicus brief filed in Grimm’s case in December, leaders of six states, including North Carolina, argued against the Obama administration’s interpretation of Title IX and said the Gloucester County district has offered an adequate accommodation by giving Grimm access to a single-stall restroom. Advocates for transgender students and Grimm’s attorneys have said such accommodations are discriminatory and contribute to the stigmatization of students who already face difficulties with harassment and bullying at school.

While many districts have pushed to maintain existing rules, some have allowed transgender students unrestricted access to school facilities without prompting from legal challenges. After students there campaigned, Los Angeles Unified opened a gender-neutral restroom at a high school recently, a move met with protest and celebration.

U.S. Circuit Judge Paul V. Niemeyer was the lone dissent on the three-judge panel.

“This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect,” he wrote. “More particularly, it also misconstrues the clear language of Title IX and its regulations.”

A version of this article appeared in the April 27, 2016 edition of Education Week as Court Sides With Student On Title IX

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Recruitment & Retention Webinar
Be the Change: Strategies to Make Year-Round Hiring Happen
Learn how to leverage actionable insights to diversify your recruiting efforts and successfully deploy a year-round recruiting plan.
Content provided by Frontline
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Equity & Diversity Webinar
Critical Ways Leaders Can Build a Culture of Belonging and Achievement
Explore innovative practices for using technology to build an environment of belonging and achievement for all staff and students.
Content provided by DreamBox Learning
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Professional Development Webinar
Strategies for Improving Student Outcomes with Teacher-Student Relationships
Explore strategies for strengthening teacher-student relationships and hear how districts are putting these methods into practice to support positive student outcomes.
Content provided by Panorama Education

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Maine Opts Out of $440M Multistate Settlement With Juul
Maine was not willing to agree to Juul's condition that would have barred school districts from suing the company.
1 min read
A cashier displays a packet of tobacco-flavored Juul pods at a store in San Francisco on June 17, 2019.
A cashier displays a packet of tobacco-flavored Juul pods at a store in San Francisco on June 17, 2019.
Samantha Maldonado/AP
Law & Courts Maine OKs First Religious School for Tuition Reimbursement
A Supreme Court ruling had ordered the state to treat religious schools the same as other private schools regarding tuition reimbursement.
1 min read
The U.S. Supreme Court building in Washington, Monday, June 27, 2022.
The U.S. Supreme Court building in Washington, Monday, June 27, 2022.
Patrick Semansky/AP
Law & Courts A School Librarian Pushes Back on Censorship and Gets Death Threats and Online Harassment
Amanda Jones lost her legal battle against online harassers this week but vows to continue to press her case.
7 min read
Amanda Jones, a librarian in Livingston Parish, La., pictured on Sept. 13, 2022. Jones is suing members of a Facebook group who harassed her virtually after she spoke against censorship in a public library meeting. Jones received angry emails and even a death threat from people across the country after she filed the lawsuit.
Amanda Jones, a librarian in Livingston Parish, La., is suing members of a Facebook group who harassed her virtually after she spoke against censorship in a public library meeting.
Claire Bangser for Education Week
Law & Courts Affirmative Action Cases Lead What Could Prove Another Momentous Supreme Court Term
The cases on race in college admissions could affect K-12. The justices will also weigh copyright, American Indian law, and LGBTQ rights.
7 min read
The U.S. Supreme Court building in Washington, Monday, June 27, 2022.
The U.S. Supreme Court building in Washington, Monday, June 27, 2022.
Patrick Semansky/AP