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.