colorful restroom or toilet sign

In a closely watched case, the federal Court of Appeals for the Fourth Circuit reversed a lower court decision and, in a 2-1 split opinion, held that, based on guidance from the federal Office for Civil Rights (OCR) within the U.S. Department of Education, Title IX of the Educational Amendments of 1972 requires covered schools to allow transgender students access to restroom facilities in accordance with their gender identity.

In G.G. v. Gloucester County School Board, No. 15-2056, — F.3d — (4th Cir. April 19, 2016), a transgender male high school student and his mother informed his public school that the student was a transgender male. School officials were supportive of the student and they ensured that he was treated as a male and permitted him to use the boys’ restroom.  Subsequently, the school board passed a resolution adopting a policy requiring that the use of restroom and locker room facilities in its schools be limited to a student’s biological sex and further provided that students with “gender identity issues” would be provided with alternative, private facilities.  In addition, the school district installed additional means for privacy for all students in its restrooms and also created unisex restrooms that were available to all students.  The student claimed the requirement that he use separate restrooms was stigmatizing and he filed suit against the district, alleging, among other things, violations of Title IX and also sought a preliminary injunction allowing him to use male restrooms while the lawsuit was pending.

At the trial court level, the federal district court dismissed the student’s Title IX claims and denied his request for a preliminary injunction.  Noting that Title IX prohibited discrimination on the basis of sex, the district court concluded the student’s sex was female and that requiring the student to use female restrooms was not discriminatory.

On appeal, the Fourth Circuit noted that the U.S. Department of Education’s Title IX regulations permit “separate toilet, locker room, and shower facilities on the basis of sex.”  At issue was whether the regulation’s permission for schools to maintain separate restroom facilities on the basis of “sex” should be interpreted to mean separate facilities based on an individual’s biological sex, as argued by the school board, or based on an individual’s gender identity, as argued by the student and the United States.  The court observed that OCR has issued guidance interpreting those regulations, opining that schools “generally must treat transgender students consistent with their gender identity” when schools maintain separate facilities based on sex.

Based on legal principles of judicial deference to administrative agencies’ interpretations of ambiguous provisions in their own regulations, the majority decision of the Fourth Circuit determined that OCR’s interpretation of the Title IX regulations was entitled to such deference and, thus, was controlling.  The court ultimately remanded the case back to the district court to reconsider its denial of a preliminary injunction based on the Fourth Circuit’s decision.  The dissent would have affirmed the district court’s dismissal of the student’s claims and accused the majority of “trampl[ing] on all universally accepted protections of privacy and safety that are based on anatomical differences between the sexes.”

This case is particularly interesting because, although the case arose in Virginia, the Fourth Circuit’s jurisdiction includes North Carolina, which recently enacted state legislation, known as HB2, that, among other things, requires school districts in that state to designate any multiple-occupancy restrooms to be used only by students based on their biological sex.  While school districts in North Carolina will have to grapple with the conflict between the Gloucester case and HB2, public schools and higher educational institutions in Connecticut and elsewhere should be aware of OCR’s guidance on transgender students’ access to facilities and how courts are interpreting Title IX as it relates to these issues.  Beyond Title IX, Connecticut schools should also be mindful that, since 2011, Connecticut state law has expressly prohibited discrimination based on gender identity or expression in public schools and in employment decisions, in addition to other contexts.

The Gloucester decision is available here.

OCR’s Letter Regarding Transgender Students’ Access to Facilities (Jan. 7, 2015) is available here.

OCR’s Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities (Dec. 1, 2014) is available here.