The national debate regarding transgender students’ rights and the obligations of school districts has developed rapidly this year. Courts across the country, including in Ohio, have issued varied decisions on these issues and the United States Department of Education (“DOE”) and the United States Department of Justice (“DOJ”) have issued controversial guidance. On October 28, 2016, the United States Supreme Court agreed to hear the recent Fourth Circuit Gloucester County School Board v. GG case, regarding bathroom use policy in relation to a transgender student. So, clarification on some of the issues facing districts may be on the horizon.

The Gloucester case began when a school district adopted a policy requiring students to use the restroom or locker room of the student’s biological gender. A transgender student had been permitted to use the boys’ restroom for several weeks before this policy, but that permission was terminated after the policy was implemented. The student subsequently 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 also sought an injunction to permit his use of the boys’ restroom.

As the case moved up through the courts, the U.S. District Court for the Eastern District of Virginia denied the injunction request and dismissed the student’s Title IX claims. However, in April, the U.S. Court of Appeals for the Fourth Circuit found that the District Court should have given deference to the DOE’s interpretation. Under the DOE’s interpretation, students should be allowed to use the restroom of the gender with which they identify. The Fourth Circuit reversed the District Court and remanded the case for further proceedings with instructions to give deference to the DOE’s interpretation. In reaching this conclusion, the Fourth Circuit relied on a 2015 opinion letter from the DOE’s Office for Civil Rights (Letter to Prince Jan. 7, 2015) which interpreted Title IX as to treat students in a manner consistent with their gender identity. In its decision and application of the DOE’s interpretation, the Fourth Circuit relied on a principle from a prior court decision, Auer v. Robbins, that courts should generally defer to an agency’s interpretation of its own regulation. The United States Supreme Court granted an emergency petition to stay the decision while the case continues. Thus, the school board’s policy remains in effect for the time being.

While this case revolves around a high-profile topic, the issue before the United States Supreme Court is quite technical. The Court will determine if Auer deference should extend to an unpublished agency letter and if the DOE’s regulatory and specific interpretation of Title IX (a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity”) should be given effect. The latter determination will have robust implications, especially in light of the DOE and DOJ’s 2016 published Dear Colleague Letter guidance, which many states are now challenging in court.

Several prior client alerts address the development of this topic. Please access them below for additional background information:

Ohio Court Weighs in on Transgender Student
U.S. Department of Education and Justice Weigh In on the Legal Developments Regarding Transgender Students
Legal Developments Regarding Transgender Students
The U.S. Supreme Court and Transgender Students

Lisa H. Woloszynek is an associate in the Education Services Group of the Cleveland-based law firm of Walter | Haverfield LLP.