Fourth Circuit Holds that School Violated Title IX by Denying Transgender Student Access to Gender-Identity-Appropriate Restroom

Practical Law Legal Update w-002-0492 (Approx. 6 pages)

Fourth Circuit Holds that School Violated Title IX by Denying Transgender Student Access to Gender-Identity-Appropriate Restroom

by Practical Law Labor & Employment

Background

G.G., a junior at Gloucester High School diagnosed with gender dysphoria, was born female but identifies as male. G.G. has undergone hormone therapy, legally changed his name to a male name, and lives as a male. He has not had sex reassignment surgery. With permission of school officials, G.G. used the boys' restroom. However parents complained to the Gloucester County School Board (Board).

The Board proposed a transgender restroom policy:

Recognizing that some students question their gender identities.
Stating that "it shall be the practice of Gloucester County Public Schools (GCPS) to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility."

The Board voted 6–1 to adopt the transgender restroom policy. G.G. was therefore barred from using the boys' restroom.

In June 2015, G.G. sued the Board:

Seeking an injunction allowing him to use the boys' restroom.
Claiming that the Board impermissibly discriminated against him in violation of Title IX and Equal Protection Clause of the Constitution.

Title IX provides that "[n]o person ... 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 or activity receiving Federal financial assistance" (20 U.S.C. § 1681(a)).

To allege a violation of Title IX, G.G. must allege that:

He was excluded from participation in an education program because of his sex;
The educational institution was receiving federal financial assistance at the time of his exclusion; and
The improper discrimination caused him harm.

(Preston v. Virginia ex rel. New River Cmty. Coll., 31 F.3d 203, 206 (4th Cir.1994).)

The Board moved to dismiss. The district court:

Denied G.G.'s request for a preliminary injunction, finding that G.G. had not made the required showing that the balance of equities was in his favor.
Dismissed G.G.'s Title IX claim.
Reasoned that:
- the regulations implementing Title IX specifically allow schools to provide separate restrooms on the basis of sex; and
- G.G.'s sex was female and that requiring him to use the female restroom facilities did not impermissibly discriminate against him on the basis of sex in violation of Title IX.

G.G. appealed to the Fourth Circuit. The US filed an amicus brief supporting G.G.'s Title IX claim.

Outcome

The Fourth Circuit reversed the district court, and remanded, holding that:

The OCR letter was:
- entitled to Auer deference (Auer v. Robbins (519 U.S. 452 (1997)); and
- to be accorded controlling weight in this case.
The district court applied an incorrect evidentiary standard on the motion for preliminary injunction.
Reassignment to another judge following remand was not warranted.

The Fourth Circuit noted that:

It relied on case law interpreting Title VII for guidance in evaluating a claim brought under Title IX (Jennings v. Univ. of North Carolina, 482 F.3d 686, 695 (4th Cir.2007)).
Section 106.33 permits the provision of "separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex."
In the OCR letter, the OCR delineated how this regulation should be applied to transgender individuals, "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" (5 J.A. 55).

The Fourth Circuit found that:

The interpretation contained in the OCR letter resolves the ambiguity in Section 106.33 as that regulation applies to transgender individuals.
The ED's interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual's sex as male or female is to be generally determined according to the student's gender identity.
The ED's interpretation is entitled to Auer deference unless the Board demonstrates that the interpretation is plainly erroneous or inconsistent with the regulation or statute.
The ED's interpretation of how Section 106.33 and its underlying assumptions should apply to transgender individuals is not plainly erroneous or inconsistent with the regulation. The regulation is silent as to which restroom transgender individuals are to use when a school elects to provide sex-segregated restrooms, and the ED's interpretation is permitted by the varying definitions of the term "sex."
None of the grounds listed in Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012), for withholding Auer deference are present in this case. Therefore, the Auer deference should apply because:
- schools have only recently begun citing Section 106.33 as justification for enacting new policies restricting transgender students' access to restroom facilities.
- the ED has consistently enforced this position since 2014; and
- this interpretation is in line with the existing guidances and regulations of most federal agencies.

Practical Implications

Title IX governs the spectrum of educational programs and services, protecting both students and employees in educational settings, while Title VII governs solely the terms and conditions of employment. Although this decision is not an employment case, courts often rely on Title VII case law to interpret Title IX since the laws are similar both in substance and procedure.. Currently, the EEOC and some courts consider discrimination on the basis of gender identity to be sex discrimination, so transgender and gender-nonconforming individuals may be protected under Title VII, but the case law is still unsettled. Employers should be aware of this precedential Title IX decision because future plaintiffs may rely on the reasoning in this case in an analogous Title VII case on behalf of a transgender employee seeking access to a gender-identity-appropriate restroom.

Update: On March 6, 2017, the US Supreme Court opted not to hear G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., and (in a one-sentence order) sent the case back to the Fourth Circuit (Gloucester Cty. Sch. Bd. v. G. G. ex rel. Grimm, (U.S. Mar. 6, 2017)). The court made this decision after the US Departments of Education and Justice issued a document on February 22, 2017, revoking a 2015 ED opinion guidance letter which had stated that schools maintaining separate restrooms and locker rooms for students based on their sex, "generally must treat transgender students consistent with their gender identity."

Fourth Circuit Holds that School Violated Title IX by Denying Transgender Student Access to Gender-Identity-Appropriate Restroom | Practical Law