Legal Developments Regarding Transgender Students

While Ohio has not addressed the issue yet, the nationwide trend of affording protections to transgender students under Title IX of the Education Amendments of 1972 continues. On April 19, 2016, the U.S. Court of Appeals for the Fourth Circuit ruled on a transgender high school boy's motion for a preliminary injunction. See G.G.ex rel. Grimm v. Gloucester Cty. Sch. Bd., 4th Cir. No. 15-2056, 2016 WL 1567467 (Apr. 19, 2016). The student sought to use the boys' restroom after his school district adopted a policy requiring students to use the restroom or locker room of their biological gender. The district also allowed the alternative of using a 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. After the policy was implemented, the student was no longer permitted to use the boys' restroom.

The student sued the school board under the Equal protection Clause and Title IX of the Education Amendments of 1972 ("Title IX") 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 decision, the Fourth Circuit vacated and reversed the decision of the lower court and remanded the case for further proceedings. The Fourth Circuit reasoned that the statute allowing for gender specific restrooms is ambiguous as it relates to transgender students. Consequently, the Department of Education's interpretation of Title IX, which treats students in a manner consistent with their gender identity, is the standard that the district court must apply. The case was remanded to the district court with instructions to give deference to the Department of Education's interpretation. The school district has requested an en banc review of the decision.

While this decision is not mandatory authority in Ohio, it continues a trend toward 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 frequently asked questions guide for school districts which addresses 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.