Schools across the country are struggling with the best legal and practical
approaches to deal with the needs of transgendered students. One of the
most emotionally-charged issues is which bathroom a transgendered student
should use. A federal district court in Virginia issued a decision last week in
a case in which a transgendered student sued the high school over the
student’s desire to use a specific bathroom. Although this case is not
binding on Nebraska schools, it provides some interesting insights into how
courts are addressing this issue.
The case, G.G. v. Gloucester Cnty. Sch. Bd., No. 15-54 (E.D.Va. Sept. 17,
2015), was filed by the ACLU on behalf of a student who is biologically
female but who identifies as male. The student and mother informed the
school that the student would like to use the boys’ bathrooms at the school.
With permission from school administrators, the student used the boys’
restroom for almost two months. After receiving complaints from some
parents and residents of Gloucester County, the school board adopted the
new policy which limits the use of boys’ and girls’ bathrooms to students of
the “corresponding biological gender.” Under the policy, trangender
students who do not wish to use the bathroom designated for their biological
sex are permitted to use separate unisex bathrooms. The ACLU filed suit
against the school arguing that the school board’s policy excluding the
student from using the boys’ restroom based on gender identity amounted
to sex discrimination in violation of Title IX.
The court dismissed the student’s Title IX claim. The court relied on a US
Department of Education regulation that expressly “allows schools to provide
separate bathroom facilities based upon sex, so long as the bathrooms are
comparable.” The court reasoned that, since schools are allowed to maintain
separate bathrooms based on sex, the school’s policy “did not run afoul of
Title IX by limiting G.G. to the bathrooms assigned to his birth sex.”
Significantly, the court specifically rejected the ACLU’s argument that the
term “sex” could only mean gender identity. Instead, the court ruled that
“under any fair reading, sex in Section 106.33 clearly includes biological
sex.”
The ACLU and the U.S. Department of Justice argued that the school had to
provide the student with access to the boys’ bathroom based on a “Dear
Colleague Letter” which was sent to schools by the Office for Civil Rights.
That letter stated that “Under Title IX, a recipient must generally treat
transgender students consistent with their gender identity in all aspects of
the planning, implementation, enrollment, operation, and evaluation of
single-sex classes.”
The district court flatly rejected the reasoning in that letter. “To defer to the
Department of Education’s newfound interpretation would be nothing less
than to allow the Department of Education to ‘create defacto a new
regulation’ through the use of a mere letter and guidance document.”
In sum, the district court concluded that the school “seeks to protect an
interest in bodily privacy that the Fourth Circuit has recognized as a
constitutional right while G.G. seeks to overturn a long tradition of
segregating bathrooms based on biological differences between the sexes.”
It found that “[b]ecause G.G. has failed to show that the balance of
hardships weighs in his favor, an injunction is not warranted while the Court
considers this claim.”
Obviously this is only one case, and the litigation between schools and
transgendered students will continue. Even this specific lawsuit is not
completely resolved. The student’s claims that the school violated the Equal
Protection Clause of the United States Constitution will continue to be
litigated by the parties, and the ACLU will likely appeal last week’s decision.
Schools should deal with the needs of transgendered students with care and
sensitivity, but it is important for schools to know that the law related to
transgendered students is far from settled.