Last week, a federal court ruled that a transgender student who was born female but identified as male and was prohibited by his school from using the boy’s bathroom was discriminated against based on sex in violation of the 14^th Amendment and Title IX. 

Facts:

The student and his parent asked permission for the student to use the boy’s bathroom.  He did so for seven weeks without a problem, and then the adults in the community began to complain.

The school Board prohibited the student from using the boy’s bathroom and offered single-stall restrooms (which they specially created for the student)  as an alternative but they were not near the student’s classes. The Board’s policy said that all students could use the private, single-stall restrooms, but could not use the restroom “of the opposite sex.”

The student told the court he felt “isolated and stigmatized” and had multiple urinary infections from avoiding the bathroom at school all together.

Decision:

The U.S. Court of Appeals for the 4^th Circuit wrote:

“At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender. . .  We join a growing consensus of courts holding that the answer is resoundingly yes.”

Judge Floyd for the 4^th Circuit majority wrote,

“No one would suppose that also providing a ‘race neutral’ bathroom option would have solved the deeply stigmatizing and discriminatory nature of racial discrimination; so too here.”

The decision is consistent with the U.S. Supreme Court’s June decision, Bostock v. Clayton County, which said a federal law forbidding discrimination protects people of all gender and sexual identities. (To read more please see previously written article: The U.S. Supreme Court Rules that Firing an Employee for Being Gay or Transgender Violates Title VII: Title IX Implications and Possible Other Student Issues Resulting from the Decision)

What does the decision mean? As predicted, a likely ripple effect from the U.S. Supreme Court opinion in June, may be that lower courts are more likely to rule that transgender students are protected under equal protection and Title IX.   While the 4^th circuit does not cover Texas, it follows what other courts have held as well as the June Supreme Court opinion; therefore, a court could likely hold a Texas school to a similar standard.  The issue of transgender bathroom use is on track for the U.S. Supreme Court.

What should districts do? Under the Obama administration rule, the U.S.  Department of Education directed schools to allow students to use the  restrooms that aligned with their gender identity.  President Trump’s administration rolled back these protections for transgender students.  However, it appears that as courts are addressing this issue, they are consistently finding that not allowing a transgender student to use the bathroom of the gender they identify is discrimination based on sex and can prevent a transgender student from participating fully in their education in violation of Title IX.

Although districts may think that it is sufficient to accommodate a transgender student by offering a unisex bathroom, courts have consistently rejected that argument and found that such a policy amounts to sex-based discrimination in violation of equal protection and Title IX.

If a student requests to use the bathroom that aligns with their gender identity, districts should discuss the student’s gender identity with the student and their family, discuss any requested accommodations the student is requesting  consistent with their gender identity, and work with your with legal counsel regarding legal obligations to provide equal protections and access to education programs and activities.  According to the Fourth Circuit, schools must avoid responding to misconceptions and stereotypes, which could interfere with a student’s access to education in violation of the U.S. Constitution and Title IX.

 

See Grimm v. Glouster County School Board, https://www.aclu.org/legal-document/grimm-v-gloucester-county-school-board-opinion