The recent increased focus on the rights of transgender individuals has included developments in the law affecting transgender students in educational institutions. The Office for Civil Rights (OCR) issued a Dear Colleague Letter in 2014 and a Q&A document in the same year, declaring that the OCR interprets Title IX to protect transgender students from sex discrimination in educational institutions. Despite the OCR’s stance on transgender discrimination, courts had yet to recognize transgender discrimination as a violation of Title IX.
The Fourth Circuit Court of Appeals recently considered whether transgender students face discrimination in violation of Title IX if they are not allowed to use the restroom of their gender identity.
Facts: G.G. is a high school student in Virginia who was assigned the female gender at birth but identified as a male. G.G. was diagnosed with gender dysphoria and underwent hormone therapy beginning his freshman year of high school. G.G. and his parents notified the high school that he was a transgender male prior to his sophomore year, and G.G. began to use the boys’ restroom at the high school. While it appears that the high school was initially supportive of G.G.’s practice of using the boys’ restroom, the school board eventually became involved and passed a policy that forbade G.G. from using the boys’ restroom on the basis that G.G.’s “biological gender” was not male. The school’s policy provided G.G. with an alternative private facility to use.
District Court: G.G. sued to enjoin the school from enforcing its policy preventing him from using the boys’ restroom, claiming in part that the school’s policy violated Title IX. The District Court granted the defendants’ motion to dismiss the Title IX claim and denied G.G.’s request for a preliminary injunction. The District Court reasoned that Title IX prohibits sex discrimination and that transgendered discrimination does not constitute sex discrimination covered by Title IX, but rather is a form of discrimination that is outside the scope of Title IX.
Fourth Circuit Court of Appeals: The Fourth Circuit reversed the District Court’s dismissal of the Title IX claim and vacated the district court’s denial of G.G.’s request for a preliminary injunction.
The Fourth Circuit held that the District Court did not accord proper deference to the interpretation OCR issued in January 2015 concerning transgender students’ access to restrooms. According to G.G., that OCR interpretation and a brief filed in support of G.G. by the United States government, explicitly clarify that transgender students should have access to the restroom of the sex with which they identify.
The Fourth Circuit also held the District Court abused its discretion in denying G.G.’s request for a preliminary injunction due to its reliance on an improper evidentiary standard. The Fourth Circuit vacated the dismissal and remanded the case to the District Court.
Aside from the Fourth Circuit’s ruling granting transgender access to restrooms at educational institutions, the decision also is significant based on the Fourth Circuit’s deference to OCR. As a result, the decision highlights the importance of OCR interpretations and Dear Colleague Letters concerning fundamental questions of policy.
Another takeaway is the Fourth Circuit’s refusal to address this issue in the context of athletics locker rooms. The Fourth Circuit specifically disclaims that this case addresses only bathrooms, as G.G. did not participate in athletics at the school. The issue of transgender access to athletics locker rooms remains more convoluted. In 2011, the NCAA enacted a policy on transgender student-athlete participation in NCAA athletics, which provides specific requirements transgender student-athletes must meet in order to be eligible to compete in single-sex sports of the sex with which the student-athlete identifies. To this point, OCR has been silent on the issue of team participation access for transgender students. Courts likely will ultimately be forced to address transgender student-athlete access to sport participation and athletic locker rooms. The contrast between OCR’s emphasis on gender identification and the NCAA’s policy requiring strict gender transformation in order to gain access would make for an interesting case. In any event, it is important for educational institutions to keep in mind the evolving law in developing and implementing their policies and practices related to transgender individuals.