G. G. v. Gloucester County School Board: The Fourth Circuit Court of Appeals Upholds the U.S. Department of Education’s Transgender Restroom Policy
by Suzanne Eckes, Todd A. DeMitchell & Richard Fossey - July 18, 2016
Only one federal circuit court of appeals has addressed the legal issues involved with allowing a transgender student to use the restroom that aligns with his gender identity. We analyze this court opinion and discuss the status of the law for school officials.
Coy was assigned the male sex at birth but at a very young age she began to identify as female (Mathis v. Fountain-Fort Carson School District No. 8, 2013). She refused to wear boys clothing or play with boys toys and consistently told her parents that she felt like a girl. In kindergarten, she exhibited high levels of anxiety when her parents and teachers did not treat her as a girl.
When students like Coy are not permitted to use the restroom that aligns with their gender identity, some allege that this is a violation of Title IX of the Education Amendments of 1972. Under Title IX, "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program" (20 U.S.C.1681(a)). While it is not entirely clear if discrimination based on gender identity is sex discrimination under Title IX, in Coys case, the Colorado Civil Rights Division found that the school districts refusal to allow her to use the restroom because of her identity was unlawful discrimination.
The U.S. Department of Education (DOE) and U.S. Department of Justices recent Dear Colleague letter (2016) interpreted Title IXs prohibition of sex discrimination to cover gender identity. However, there is no U.S. Supreme Court decision that addresses this issue and only one federal appellate court has ruled on this matter. This federal appellate court decision from the Fourth Circuit, which has jurisdiction over Maryland, North Carolina, South Carolina, Virginia, and West Virginia, will be examined in this commentary. This issue is timely with several school districts across the country experiencing controversy concerning restroom and locker room policies for transgender students (see Rogers, 2016; Siddall, 2015).
G. G. v. GLOUCESTER COUNTY SCHOOL BOARD
G. G. v. Gloucester County School Board (2016) originated in Virginia and addressed whether Gavin, a transgender male student, should be permitted to use the restroom that aligns with his gender identity at school. Gavin said that during preschool he refused to wear girls clothing and by age twelve felt more like a boy. By high school, he presented himself as a boy and was soon diagnosed with gender dysphoria. This is a condition where ones biological sex is the opposite of ones emotional or psychological identity. The psychologist who examined Gavin explained that he should be treated as a male in every way including access to the restroom.
Gavin legally changed his name and eventually began hormone therapy. Although Gavin initially agreed to use a restroom in the nurses office, he later requested to use the male restroom after his teachers and the vast majority of his peers acknowledged that he was a boy. According to Gavin, girls in the school were uncomfortable with him using the female restroom due to his masculine appearance including facial hair and deep voice. The principal agreed to let him use the male restroom, but several weeks later the school board received complaints from adult community members. The board initially responded by identifying ways to create more privacy in restrooms (e.g., partitions between urinals), but eventually passed a resolution requiring that students use restroom and locker room facilities that align with their biological sex or use alternative private facilities (G. G. v. Gloucester County School Board, 2015). The school installed three unisex single-stall restrooms and Gavin eventually filed a lawsuit.
Title IX and its implementing regulations do not specifically address how to provide restroom access to transgender students when their gender identity does not align with their sex at birth. Whereas school officials interpreted the regulation with sex meaning sex assigned at birth, Gavins attorney construed Title IX as covering discrimination based on gender identity that was consistent with the U.S. DOEs position.
A federal district court denied Gavins motion for a preliminary injunction and granted the school districts motion to dismiss his Title IX claim. The district court judge found that Gavin failed to show that his use of the male restroom would not infringe upon other students privacy rights. The federal district court found that under Title IXs regulations (34 C.F.R.106.33), a school may provide separate restroom and locker room facilities on the basis of sex and therefore the school boards restroom policy did not violate Title IX.
On appeal, the Fourth Circuit Court of Appeals agreed that a federal regulation for implementing Title IX clearly permits restrooms and locker rooms to be segregated by sex. However, the appellate court also noted that the regulation did not address how this would apply to transgender students. It stated that the regulation is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms (G. G. v. Gloucester County School Board, 2016, p. 7).
Reversing the district courts dismissal of Gavins Title IX claim, the Fourth Circuit ruled that the district court did not give the DOEs interpretation of the regulation appropriate deference. The court suggested that a January 2015 letter from the Office for Civil Rights stating that schools must treat transgender students consistent with their gender identity was instructive. It reasoned that the letter stated that schools are allowed to provide facilities on the basis of sex as long as what is provided for one gender is comparable to what is provided to the other. The court also stated that, When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity (G. G. v. Gloucester County School Board, 2016, pp. 1617). Thus, the district courts denial of the preliminary injunction was vacated and the case was remanded with this guidance. The Fourth Circuit declined to rehear this decision and the school district plans to ask the U.S. Supreme Court to review the case.
The Fourth Circuits decision was rendered by a 21 vote. Judge Niemeyer dissented from part of the majoritys opinion, arguing that federal courts had previously ruled that individuals have a legal right to privacy that includes the right not to be viewed in a disrobed or partially disrobed state by a person of the opposite sex. Judge Niemeyer observed, Indeed, courts have consistently recognized that the need for such privacy is inherent in the nature and dignity of humankind (G. G. v. Gloucester County School Board, 2016, p. 62). In Judge Niemeyers view, the DOEs transgender restroom policy conflicted with the privacy rights of other students, rights that had been recognized in past judicial decisions.
THE STATUS OF THE LAW
The Fourth Circuit opinion discussed above is only binding in five states. It is also important to highlight that the 2016 Dear Colleague letter does not have the force of law, but the U.S. DOE could decide to withhold federal funds if school officials do not permit transgender students to use the restroom that aligns with their gender identity. Several parents have already filed for injunctive relief, alleging that the governments recent guidance oversteps its role in state educational policy matters (Students & Parents for Privacy v. U.S. Department of Education, 2016). In this lawsuit, the plaintiffs cite several concerns about students rights to privacy in the restroom. Similarly, a coalition of 11 states led by the Texas attorney general is seeking a preliminary injunction to prevent enforcement of the federal transgender student guidance (National School Boards Association, 2016). Most recently, 11 more states filed a lawsuit in federal court also alleging that the departments overstepped their authority when they issued the guidance (Nebraska v. U.S.A., 2016).
While there are legitimate privacy concerns, several school districts have addressed the issue by ensuring that restroom stalls have doors and there are privacy curtains installed in locker rooms. Some school officials are beginning to examine related research on this matter. For example, there is a growing consensus in the scientific community that genetics and hormones influence gender identity (Dingfelder, 2004) and that gender identity is not chosen (Hare et al., 2009; Lerche Davis, 2003). Despite the research, this issue will continue to play out in schools and courtrooms across the country. If more courts agree with the DOEs interpretation that discriminating against a student based on gender identity falls under Title IX, transgender students will likely be permitted to use the restroom that aligns with their gender identities.
Dingfelder, S. (2004). Gender bender. American Psychological Association, 35(4), 48.
G. G. v. Gloucester County School Board, 2015 U.S. Dist. LEXIS 124905 (E.D. Va. 2015).
G. G. v. Gloucester County School Board, 2016 U.S. App. LEXIS 7026 (4th Cir. 2016).
Hare, L., Bernard, P., Sanchez, F., Baird, P., Vilain, E., Kennedy, T., & Harley, V. (2009). Androgen receptor repeat length polymorphism associated with male-to-female transsexualism. Biological Psychiatry, 65(1), 9396.
Higher Education Amendments of 1972 (Public Law No. 92-318, 86 Stat. 235).
Lerche Davis, J. (2003, October 20). Is sexuality hardwired? WebMD Health News. Retrieved from http://www.webmd.com/sex-relationships/news/20031020/is-sexuality-hardwired
Mathis v. Fountain-Fort Carson School District 8, No. P20130034X (June 17, 2013).
National School Boards Association. (2016, July 7). Coalition of 11 states seeking preliminary injunction in suit filed by Texas attorney general to prevent enforcement of federal government transgender guidance. Legal Clips. Retrieved from http://legalclips.nsba.org/2016/07/07/coalition-of-13-seeking-preliminary-injunction-in-suit-filed-by-texas-attorney-general-to-prevent-enforcement-of-federal-government-transgender-student-guidance/.
Nebraska v. U.S.A., No. 4:16-cv-03117 (Dist. Ct. Neb. 2016).
Rogers, K. (2016, February 25). Transgender students and bathroom laws in South Dakota and beyond. The New York Times. Retrieved from http://www.nytimes.com/2016/02/26/us/transgender-students-and-bathroom-laws-in-south-dakota-and-beyond.html?_r=0
Siddall, N. (2015, February 19). Transgender students use of school restroom sparks debate in Manchester. Daily Tribune. Retrieved from http://www.dailytribune.com/social-affairs/20150219/transgender-students-use-of-school-restroom-sparks-debate-in-manchester
Students and Parents for Privacy v. U.S. Department of Education, Complaint for Injunctive Relief, (N.D. Ill. 2016).
U.S. Department of Justice and U.S. Department of Education (2016, May 13). Dear colleague letter on transgender students. Retrieved from http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf