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When “John” Is Now “Jane”: What Are The Rights Of Transgender Students Under Federal Law?

As you may be aware, the U.S. Departments of Education and Justice (DOE/DOJ) last week issued a “significant guidance letter” in which they essentially concluded that Title IX requires public schools to permit transgender students to use the bathrooms, locker rooms, and dormitories that correspond to their gender identity, regardless of their biological sex. Title IX generally prohibits discrimination on the basis of sex in educational programs and activities by schools receiving federal funds. According to the DOE/DOJ letter, public schools must treat “a student’s gender identity as the student’s sex.” A panel of our federal Fourth Circuit Court of Appeals recently upheld the DOE/DOJ interpretation, but the ruling has now been stayed pending review by the full Fourth Circuit. DOE, however, through its Office for Civil Rights (OCR), and DOJ have made their position clear.

In the recent case of G. G. v. Gloucester County School Board, a three-judge panel of the Fourth Circuit considered whether Title IX also prohibits discrimination on the basis of gender identity. The case involved a transgender male, G.G. (born female but identifying as male), who challenged the school board’s transgender restroom policy requiring students to use bathrooms corresponding to their biological sex or an alternative private bathroom. The trial court dismissed G.G.’s Title IX claim, and G.G. appealed to the Fourth Circuit. The Fourth Circuit panel reversed the lower court, holding that DOE had correctly interpreted Title IX regulations to require that when a school district elects to separate or treat students differently on the basis of sex, such as when providing restrooms, locker rooms, and the like, the district must generally treat transgender students consistent with their gender identity instead of their biological sex.

The Gloucester County School Board has requested a rehearing before the entire 15-judge Fourth Circuit; the Court issued a “stay” while it considers that request. A stay essentially places the G.G. ruling on hold, though it provides no indication as to how the full Fourth Circuit will ultimately decide the G.G. case.

If the Fourth Circuit denies a rehearing or issues a new decision in line with the decision of the three-judge panel, districts likely will be subject to suit for violating Title IX if they do not allow transgender students to use the restroom that conforms to their gender identity. That is, a transgender male (born female but identifying as a male) would have to be permitted to use the boys’ bathroom facilities. Similarly, a transgender female (born male but identifying as a female) would have to be permitted to use the girls’ bathroom facilities.

While the law in this area remains unsettled, it appears likely that schools will have to work to balance the rights of transgender students with the privacy and safety rights of other students. Indeed, lawsuits are now being filed against school districts that have sought to accommodate transgender students by the parents of non-transgender students who allege the privacy rights of their children are being violated because they are forced to be in the bathroom or locker room with transgender students. This places districts in the untenable position of facing OCR enforcement actions on behalf of transgender students or lawsuits on behalf of non-transgender students.

Despite the uncertain legal landscape, districts should consider taking steps to benefit all students, regardless of how this issue ultimately is settled. Initially, schools may choose to provide all students with access to alternative unisex facilities. This protects transgender students who do not feel comfortable using the facilities that correspond to their gender identity, as well as non-transgender students who are uncomfortable being in a restroom or locker room with a transgender youth. Districts also may consider other methods by which the privacy of all students in restroom and locker room facilities can be protected – for example, creating stalls in showers/restrooms and stalls for changing in locker rooms. Districts also may want to consider reviewing their gender-based rules and practices, such as gender-based dress codes, to avoid potential challenges based on sex discrimination.

There are many less controversial issues besides access to bathrooms and locker rooms that school administrators may encounter when a student expresses a sincere desire to be recognized by a gender identity different from their birth sex. These include determining what name and pronouns to use for a transgender child; how to best protect the transgender child’s privacy concerning school records; how to prevent bullying and harassment; and how to deal with parents who are not supportive of the child’s transgender status. Districts also may be asked by parents to provide separate hotel accommodations for transgender students attending overnight field trips.

Based on the G.G. case and the guidance accompanying the DOE/DOJ letter, this firm is providing a “Question and Answer” document targeted to district administrators, which suggests approaches to accommodating transgender students. Many schools quietly have been addressing these issues on a case-by-case basis, often with great success. We believe this case-by-case approach, through open communication between school officials and the transgender student and his/her parents or legal guardian, is the preferred method of addressing the needs of transgender students until the law is settled. In our view, adoption of a specific policy on this issue is premature and may call unnecessary attention to how a district is handling these controversial student matters.

We will keep you updated on legal developments in this area. In the meantime, if you have questions, please let us know.