How schools treat transgender students as it relates to the use of restrooms and locker rooms has become a hotly debated issue throughout the country. In one of the first published federal court rulings on this issue, the District Court for the Eastern District of Virginia has dismissed a transgender student’s claim under Title IX seeking access to the school restroom of his identified gender (male). The court also declined to grant a preliminary injunction while it continued to consider the student’s claim under the Equal Protection Clause of the Fourteenth Amendment. G.G. v. Gloucester County School Board, Case No. 4:15cv54 (E.D. VA., September 17, 2015).
This case arises from a student's challenge to a recent restroom policy passed by the School Board. The Plaintiff G.G. was born in 1999 and designated female. However, at a very young age, G.G. did not feel like a girl and starting at approximately age 12, G.G. acknowledged his male gender identity to himself. In 2013-14, during G.G.’s freshman year of high school, most of his friends were aware that he identified as male and away from home and school G.G. presented himself as male.
Making a Lifestyle Transition
In April 2014, G.G. first informed his parents that he was transgender and believed he was a man. G.G. then began seeing a psychologist who subsequently diagnosed him with Gender Dysphoria. As part of G.G.’s treatment, the psychologist recommended that G.G. begin living in accordance with his male gender identity in all respects. The psychologist provided G.G. with a treatment documentation letter that confirmed that he was receiving treatment for Gender Dysphoria and as part of that treatment he should be treated as a boy in all respects, including his use of the restroom. G.G. subsequently petitioned the Circuit Court of Gloucester County to change his legal name to his present masculine name and the court granted the petition.
G.G. also sought to implement his lifestyle transition at school. In August of 2014, G.G. and his mother notified officials at Gloucester High School that G.G. was transgender and that he had changed his name. Consequently, officials changed school records to reflect G.G.'s new masculine name. Furthermore, before the beginning of the 2014-15 school year, G.G. and his mother met with the school principal and guidance counselor to discuss his social transition. The school representatives allowed G.G. to email teachers and inform them that he preferred to be addressed using his new name and male pronouns. Initially, G.G. agreed to use a separate restroom in the nurse's office. However, after the 2014-15 school year, G.G. found it stigmatizing to use a separate restroom. G.G. requested to use the men’s restroom. On or around October 20, 2014, the school principal agreed to G.G.’s request and for the next seven weeks G.G. used the men’s restroom.
The Community Reaction
Some members of the community disapproved of G.G.'s use of the men's restroom when they learned of it and some of these individuals contacted members of the School Board asking that G.G. be prohibited from using the men's restroom. Shortly before the School Board's meeting on November 11, 2014, one of its members added an item to the agenda titled “Discussion of Use of Restrooms/Locker Room Facilities” along with a proposed resolution. The proposed resolution, in pertinent part, states as follows:
“It shall be the practice of the Gloucester County Public Schools 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.”
At the end of the meeting, the School Board voted 4-3 to defer a vote on the policy until its December meeting. Prior to the December meeting, the School Board issued a news release stating that regardless of the outcome, it intended to take measures to increase privacy for all students using school restrooms, including expanding partitions between urinals in male restrooms; adding privacy strips to the doors of stalls in all restrooms; and designating single-stall, unisex restrooms, similar to many other public spaces. The proposed resolution passed 6-1 at the December 9, 2014 meeting.
The day after the School Board passed the Resolution, the school principal informed G.G. that he could no longer use the men’s restroom and would be disciplined if he did. Since the adoption of the restroom policy, certain physical improvements were made to the school restrooms at the high school as noted in the press release. The school installed three unisex single-stall restrooms; raised the doors and walls around the restroom stalls so that students cannot see into an adjoining stall; and, partitions were installed between the urinals in the men's restrooms.
Stigmatized and Isolated
G.G. refused to use the separate single-stall restrooms installed by the school because the use of them would stigmatize and isolate him; that the use of these restrooms would serve as a reminder that the school views him as different; and that the school community knows that the restrooms were installed for him. From these facts, G.G. brought the present challenge to the School Board’s Restroom Policy under the Equal Protection Clause and Title IX. On the same day G.G. filed the motion for preliminary injunction requesting that the court issue an injunction allowing G.G. to use the men’s restroom. The United States, through the Department of Justice, filed a Statement of Interest, asserting that the School Board's restroom policy violated Title IX.
After briefing, the District Court concluded that G.G.’s Title IX claim was precluded by the Department of Education’s regulations. The court noted that Title IX prohibits sex discrimination under any education program or activity receiving Federal financial assistance (20 U.S.C § 1681) but noted this prohibition is not without exceptions. Among the exceptions listed in Title IX is a provision stating that:
"Nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act from maintaining separate living facilities for the different sexes.” (20 U.S.C § 1686).
The Department of Education regulations further stipulate that:
“A recipient may provide 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.” 34 C.F.R. § 106.33.
The court concluded that this regulation expressly allows schools to provide separate restroom facilities based upon sex, so long as the restrooms are ‘comparable.’
The Department of Education Letter Lacks Weight
The Department of Education urged the court to defer to the Department of Education’s interpretation of Title IX, notwithstanding the language of §106.33. In support of its position, the government attached a letter dated January 7, 2015 issued by the Department of Education, through the Office for Civil Rights, apparently clarifying its stance on the treatment of transgender students with regard to sex-segregated restrooms. The letter, in pertinent part, states a school must treat transgender students consistent with their gender identity. The letter cites the Department of Education’s Significant Guidance Document published in 2014 in support of this interpretation. This Guidance Document also states that under Title IX, a recipient must generally treat transgender students consistent with their gender identity.
The District Court rejected the Department of Education’s interpretation finding that it does not stand up to scrutiny. The District Court concluded the Department of Education’s interpretation should not be given controlling weight. First, §106.33 is not ambiguous. It clearly allowed the School Board to limit restroom access “on the basis of sex” including birth or biological sex. Furthermore, the Department of Education’s interpretation of §106.33 was plainly erroneous and inconsistent with the regulations. The court concluded that to defer to the Department of Education’s new found interpretation would be nothing less than to allow the Department of Education to “create de facto a new regulation” through the use of a mere letter and guidance document.
The District Court invited the Department of Education to amend its regulations if it wished to do so. However, it must go through notice and comment rulemaking as required by the Administrative Procedure Act. It will not be permitted to disinterpret its own regulations for the purpose of litigation. The District Court stated that allowing the Department of Education’s letter to control in this case would set a precedent that agencies could avoid the process of formal rulemaking by announcing regulations through simple question and answer publications. Such a precedent would be dangerous and could open the door to allow further attempts to circumvent the rule of law.
For these reasons, the District Court dismissed the Title IX count of plaintiff’s complaint and denied the motion for preliminary injunction based upon Title IX.
The court noted that it had not ruled on whether G.G. had stated a claim under the Equal Protection Clause, but the court found that even if such a claim was stated, not enough evidence was submitted to establish that the balance of hardship ways in his favor. Accordingly, the issuance of a preliminary injection was not warranted.
A Local Case
The issue of the treatment of transgender students’ use of restrooms and locker rooms will continue throughout the Federal District Courts within the United States. Currently, a school district in Illinois has been ordered to provide a transgender student with access to the locker room of the student’s gender identity. It appears that the Department of Education’s demands will be rejected and that case will proceed through a District Court in Illinois.
It is imperative that school districts throughout the United States make their best efforts to provide comparable restroom and locker room facilities until the U.S. Supreme Court resolves the Title IX and Equal Protection issues related to transgender students access to restrooms and locker rooms.