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.
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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

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