Helping Schools Deal with Transgender Issues

By Christina Henagen Peer and Lisa H. Woloszynek

Amid national strain and debate surrounding gender identity--from boycotts of Target due to its transgender bathroom policy to state laws and city ordinances that are aimed to restrict restroom use to biological at birth gender--school districts find themselves thrown into this national debate. Guidance from courts and agencies continues to evolve, leaving school districts floundering amidst the controversy with a lack of adequate legal direction to help them balance the prohibition of discrimination against privacy and safety concerns for the student body and community.

The U.S. Department of Education Office of Civil Rights (OCR) enforces Title IX of the Education Amendments of 1972 (Title IX), which protects individuals from discrimination based on sex in education programs. However, the interpretation as to what constitutes sex discrimination in relation to transgender individuals is in dispute. With a lack of explicit protections within Ohio law, school districts are left to face uncertain decisions. So, for example, should a transgender boy use the designated boys' restroom? Girls' restroom? Another separate restroom available in the building? And ultimately, is separate really equal or does it lend itself to a sex discrimination claim? Title IX has been successfully used to address sexual and gender-based harassment in schools despite no expressed provision of prohibition on those grounds.

Settlement agreements have been made in connection with restroom conflicts (e.g. $75,000 from a school district in Doe v. Regional Sch. Unit 26) with a Maine court having issued an order prohibiting the district from "refusing access by transgender students to school restrooms that are consistent with their gender identities." In another case, an Illinois school district attempted to defy the OCR which had required access to a girls' locker room by a female transgender student. The school, instead, had attempted to provide a separate changing area—an action which led to OCR-initiated proceedings to revoke the district's federal funding. Ultimately, however, a settlement was reached.

While Title IX does not provide direction for school districts to determine restroom use for transgender students, the Department of Education has indicated that Title IX instructs schools to treat transgender students consistent with their gender identities and not separate or treat them differently based on sex (e.g. gender-specific restrooms).

Recently, the U.S. Court of Appeals for the Fourth Circuit addressed a transgender high school boy's motion for a preliminary injunction to use the boys' restroom after his school district adopted a policy limiting restroom and locker room use to biological genders with an alternative private facility for individuals with gender identity issues. The student had initially been permitted to use the boys' restroom for several weeks before this policy was implemented. The student sued the school board under the Equal protection Clause and Title IX of the Education Amendments of 1972 challenging the school board's policy. The student requested a preliminary injunction which would permit him to use the boys' restroom during the pendency of the case. The school district filed a motion to dismiss the lawsuit. The U.S. District Court for the Eastern District of Virginia denied the injunction request and dismissed the student's Title IX claims. The student appealed to the U.S. Court of Appeals for the Fourth Circuit.

In a 2-1 split, The Court of Appeals remanded the case back to the District Court with instructions to give deference to the Department of Education's interpretation of Title IX. The Court found that the section which allows for gender-specific restrooms is ambiguous as it relates to the application for transgender students and, therefore, the Department of Education's interpretation of gender identity as an individual's "sex" for purposes of Title IX is the applicable interpretation the District Court must apply. Following the Fourth Circuit's ruling, a Virginia federal district court ordered the School Board to allow the transgender student to use the boy's restroom.

The school district has filed an emergency motion with the United States Supreme Court asking the Court to delay the implementation of the federal district court injunction until the high court decides whether to review the case. As part of the motion, the school board's attorneys argued that allowing the transgender student to use the boy's bathroom could jeopardize the constitutional rights of parents. If the Supreme Court ultimately decides to the take the case for review, the Court may be faced with determining whether the prohibitions of sex discrimination encompass gender identity. At this point, the School Board plans to file a formal petition seeking the Supreme Court's review of the matter later this summer.

While this case does not directly impact Ohio schools, if the Supreme Court takes up this issue, it would impact schools throughout the nation. The Fourth Circuit case continues a trend toward greater protections for transgender students. In addition to restroom/locker room issues, districts should be mindful of requests for name changes (both in everyday practice and on official educational records); athletic team participation; rooming arrangements for students while on school- sponsored trips; and gown color in graduation ceremonies.

Due to the increasing prevalence of issues regarding transgender students, it is advisable for school districts to proactively manage these situations to decrease the likelihood that they result in discrimination complaints. The National School Boards Association has published a guide with frequently asked questions to address a wide range of issues. School districts should proceed carefully when addressing transgender issues given that the legal standards in this area continue to evolve.

Christina can be reached at 216-928-2918 or cpeer@walterhav.com and Lisa can be reached at 216-619-7835 or lwoloszynek@walterhav.com.