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.