4th Circuit Rules that a Virginia School Board Violated Title IX by Preventing a Transgender Male Student from Using Boys' Restroom

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R. Douglas Taylor
May 6, 2016

A sharply divided three-judge panel of the U.S. Court of Appeals for the 4th Circuit in Richmond ruled 2-1 last week in the case of G.G. v. Gloucester County School Board that a Gloucester County School Board regulation limiting the use of student restrooms and locker facilities to a student’s biological or birth gender was impermissibly in conflict with a U.S. Department of Education (“DOE”), Office of Civil Rights (“OCR”) interpretation of Title IX of the Education Amendments of 1972 (“Title IX”) that requires schools to treat transgender students consistent with their gender identity. The school board issued a statement shortly after the opinion was made public that it will request a review of the decision by the full 4th Circuit.

The case was brought by G.G., a 16-year-old transgender boy at Gloucester High School. G.G.’s biological or birth sex is female. G.G’s gender identity is male. He lives all aspects of his life as a boy, even changing his name to a traditionally male name, although he has not undergone sex reassignment surgery. 

During his sophomore year of high school, G.G. and his mother disclosed to school officials that G.G. was a transgender boy. Initially, school officials allowed G.G. to use the boys’ restrooms, which he did without problems for seven weeks. When some community members complained about G.G.’s use of the boys’ restrooms, the school board held public hearings and passed a policy that limited restroom use to a student’s corresponding biological or birth gender, citing student privacy concerns, and student safety, among other things. Contemporaneously, the school board also improved general school restroom privacy, adding privacy strips and expanded partitions for urinals in the male restrooms and building single-stall unisex restrooms for use by all students. The school board’s policy reflected what the dissenting opinion described as “universally accepted” concerns about “protections of privacy and safety that are based on the anatomical differences between the sexes.”

In response to the implementation of that policy, G.G. sued the school board, arguing, in part, that he could not use the new unisex restrooms because they “set him apart” and made him feel “even more stigmatized[,]” and, instead, simply tried to avoid using the school restrooms altogether, with the result that he developed “multiple urinary tract infections.” G.G. was diagnosed as suffering from gender dysphoria, i.e., significant distress brought on by an incongruence between the person’s birth-assigned sex and gender identity.

The determinative issue for the 4th Circuit to decide on appeal was what meaning should be ascribed to the phrase, “on the basis of sex.” Title IX states that “no 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.” (Emphasis added). DOE regulations implementing Title IX permit a school to provide separate toilet facilities on the basis of sex, but do not expressly address how the word “sex” should be interpreted in the context of a transgender student. The OCR tried to clarify that situation in 2015, issuing a written interpretation of DOE’s Title IX regulations, which states:

"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."

A federal district judge, deciding in favor of the school board, rejected the OCR’s interpretation, finding that Title IX unambiguously prohibits discrimination “on the basis of sex,” rejecting the argument that Title IX’s prohibition extends to “gender, gender identity, or sexual orientation.” On appeal, the 4th Circuit disagreed, concluding that the meaning of “sex,” as used in the DOE’s regulations, was not clear, at least as it relates to transgender students.  Citing Supreme Court precedent that requires deference by a reviewing court to an agency’s interpretation of its own ambiguous regulations, unless the interpretation is plainly erroneous or inconsistent with the regulation or statute, the 4th Circuit decided that it was obligated to accept the OCR’s interpretation of its Title IX regulations, offering:

"Although the [OCR]’s interpretation is novel, because there was no interpretation as to how [the regulations] applied to transgender individuals before January 2015, ‘novelty alone is no reason to refuse deference’ and does not render the [2015] interpretation inconsistent with prior agency practice."

Responding to the dissenting judge’s criticism of the outcome of the case, the majority responded that it would “leave policy formulation to the political branches,” suggesting:

"Not only may a subsequent administration choose to implement a different policy, but Congress may also, of course, revise Title IX explicitly to prohibit or authorize the course charted here by the [DOE] regarding the use of restrooms by transgender students."      

Thus, the 4th Circuit became the first federal circuit court to decide on the issue of bathroom access for transgender students. For now, the decision in G.G. is the last word for schools on their restroom use obligations to transgender students under Title IX. Whether other federal circuit courts – or, ultimately, the Supreme Court – will take a similar position remains to be seen, and it is not entirely clear what the 4th Circuit’s decision would be, if it grants en banc review of the panel’s decision. However, it is clear that the impact of the G.G. decision will be felt acutely and immediately by school districts, especially those in North Carolina where the state legislature recently passed a bathroom statute that is directly contrary to the 4th Circuit’s decision.