The ongoing debate regarding the responsibilities of public school districts with respect to transgender students has continued to be fueled by a new decision from the United States Court of Appeals for the Sixth Circuit. On December 15, 2016, the Sixth Circuit issued an Order in Board of Education of Highland Local School District v. United States Department of Education, et al., affirming the decision of the United States District Court for the Southern District of Ohio, which blocked that school district’s attempt to prevent a transgender student identifying as a female from using the girls’ restroom at her school. Both the lower court’s decision and the Sixth Circuit decisions in Highland align with the DOE interpretation of Title IX. Specifically, the DOE has provided that funding recipients must “generally treat transgender students consistent with their gender identity.”

The Highland Court, in a 2-1 decision, explained that “[t]he crux of this case is whether transgender students are entitled to restroom access for their identified gender rather than their biological gender at birth.” Noting that the law in the Sixth Circuit prohibits discrimination based on a person’s transgender status, the appellate court refused to grant the school district’s request to stay a preliminary injunction issued by the district court allowing the student to access the restroom of her identified gender. While Highland argued that such an allowance would result in irreparable harm, the Sixth Circuit disagreed.

The appellate court examined the student’s individual circumstances, along with broader public policy interests, in making this decision. The Sixth Circuit’s decision explained that the student, “a vulnerable eleven-year-old with special needs” would suffer significant harm if prevented from using the girls’ restroom. Specifically, the majority pointed to the student’s “personal circumstances—her young age, mental health history, and unique vulnerabilities—and her use of the girls’ restroom for over six weeks, which has greatly alleviated her distress, [to] differentiate her case from” the Gloucester matter. In Gloucester, the Supreme Court granted a Virginia school district’s request for a stay, where the issue involves a high school transgender student’s request to use the boys’ restroom.

In Highland, the court explained that “staying the injunction would disrupt the significant improvement in Doe’s health and well-being that has resulted from the injunction [and] further confuse a young girl with special needs who would no longer be allowed to use the girls’ restroom…” The dissent argued that the status quo should have remained in place until the U.S. Supreme Court has issued a decision regarding this issue, as “similar treatment of similar plaintiffs is the essence of equal justice under law.”

The Supreme Court is set to decide the Gloucester case in 2017. The decision in Gloucester should resolve the issue of whether courts must provide deference to the U.S. Department of Education’s (“DOE”) interpretation of Title IX. Specifically, the DOE has provided that funding recipients must “generally treat transgender students consistent with their gender identity” which could be different than the student’s sex at birth.

While we await the Supreme Court’s decision in Gloucester, school districts should take note that, although the Highland decision was limited to the specific facts in that case, decisions from the Sixth Circuit are binding authority in Ohio.

Sara Markouc is an associate in the Education Law Services Group of Walter | Haverfield LLP.

Megan GreulichL Burleson

As one of the few full-service law firms in Ohio with a dedicated education law practice, Walter | Haverfield is proudly adding two new attorneys to its team in the firm’s Columbus office. Both attorneys will serve an increasing client base of school districts in Central and Southern Ohio.

Lisa Burleson joins Walter | Haverfield as a partner after seven years working in education law. Previously, she led her own education law practice in Columbus, was associated as Of Counsel with two other law firms in Columbus and served as Deputy Director of Labor Relations for the Ohio School Boards Association. Burleson works closely with school districts as general counsel and provides various types of legal services including labor negotiations, labor relations, employment, special education, Title IX, student issues, litigation and Board governance issues.

“This move is a fantastic opportunity for my clients to have access to a broad support base with Walter | Haverfield’s Education Law group, and I’m excited to grow the firm’s Columbus practice,” said Burleson, who lives in Upper Arlington with her husband and two children. “I’m proud to be a part of such a distinguished firm and work with such talented education attorneys.”

Megan Greulich joins Walter | Haverfield as an associate. Previously, she worked at the Ohio School Boards Association in Columbus for nine years, most recently as a senior staff attorney. There, Greulich provided legal information, guidance and policy recommendations to boards of education, attorneys and administrators across the state via the association’s statewide legal hotline, presentations and publications.

“I’m thrilled to join such a reputable education law team,” said Greulich, who lives in Westerville with her husband and three children. “It gives me the chance to utilize my skills in new ways and continue to assist school districts, which is what I love.”

“Lisa and Megan bring a wealth of knowledge to our group,” said Christina Peer, head of Walter | Haverfield’s Education Law team. “Their assistance and counsel will give us an excellent opportunity to better serve school districts throughout the state. We are truly excited to have them on board.”

Burleson is very active as a volunteer in her community and her children’s school. She also serves on the Columbus Bar Association Admissions Committee.

Greulich currently serves as Chair of the Ohio State Bar Association’s Education Law Committee, is an Ohio State Bar Foundation Fellow and has volunteered with the Columbus Urban League, her children’s school and the Columbus City School District’s Reading Buddies program.

Both Burleson and Greulich are graduates of Capital University Law School and are members of the Ohio State Bar Association as well as the Columbus Bar Association.

Since 1932, Walter | Haverfield attorneys have served as strategic counselors to private businesses, public organizations and high-net-worth individuals, providing creative and customized solutions that deliver outstanding results at an exceptional value. Today, our team of nearly 80 attorneys is focused primarily in the areas of business services, real estate, intellectual property, labor and employment, education, tax and wealth management, hospitality and liquor control, litigation and public law.