United States: Fourth Circuit Holds That Title IX Protects Transgender Student's Right To Use Men's Restroom Consistent With The Student's Gender Identity

Seyfarth Synopsis:  The U.S. Court of Appeals for the Fourth Circuit holds that Title IX protects a transgender student's right to use the restroom that aligns with the student's gender identity.

The Fourth Circuit has become the first federal circuit to weigh in on bathroom access for transgender students. In G.G. v. Gloucester County School Board, Case No. 15-2056, the Fourth Circuit held that deference should be given to U.S. Department of Education ("DOE") guidance which directs that schools must treat transgender students consistent with their gender identity if schools designate separate bathroom facilities on the basis of "sex" as authorized by Title IX regulation at 34 C.F.R. § 106.33.  Since Title IX applies to educational institutions generally, the impact of G.G. applies not only to public schools but also to colleges, universities, and private schools that are recipients of federal financial assistance.

This ruling thus places federal jurisprudence in direct opposition to the bathroom bills that have passed or been proposed in some states.

A link to the Fourth Circuit's decision can be found here.

Case Background

G.G., a high school junior, is a transgender boy. His sex assigned at birth is female, but his gender identity is male.  G.G. has been diagnosed with gender dysphoria, a medical condition "characterized by clinically significant distress caused by an incongruence between a person's gender identity and the person's birth-assigned sex."  G.G. has undergone hormone therapy and legally changed his name to a traditionally male name.  Consistent with predominating medical standards of care for transgender minors, G.G. has not undergone sex reassignment surgery.

During G.G.'s sophomore year, he informed the administration of Gloucester High School that he was transgender. He was subsequently permitted to use the men's restroom. He used the restroom without incident for almost two months.  After interest and input from some community members, the Gloucester County School Board revised its policy to limit the use of restroom and locker room facilities to "the corresponding biological genders," and supplied a gender-neutral restroom for transgender students. 

G.G. sued for gender discrimination under Title IX and the Equal Protection Clause and requested a preliminary injunction allowing him to use the bathroom aligning with his gender identity.  G.G. alleged that being required to use the women's restroom caused negative reactions from other students, severe psychological distress, disruption of treatment for gender dysphoria, stigmatization, and medical conditions arising from avoidance of use of restroom facilities at school. G.G. further alleged that he could not use the new unisex restrooms because they made him "feel even more stigmatized" and that being "required to use the separate restrooms sets him apart from his peers, and serves as a daily reminder that the school views him as 'different'."

The District Court for the Eastern District of Virginia dismissed G.G.'s Title IX claim, holding that Title IX prohibits discrimination on the basis of biological sex and not on the basis of other concepts such as gender, gender identity, or sexual orientation.  The court also denied his request for a preliminary injunction.  G.G. appealed to the Fourth Circuit.

The Fourth Circuit's Ruling

The Fourth Circuit reversed the District Court, deferring to the DOE's guidance as to how the Title IX regulation should apply to transgender individuals' use of sex-segregated facilities. The Court noted that an "agency's interpretation of its own ambiguous regulation [will] be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute."

Here, the relevant guidance was contained in the DOE Office of Civil Right's January 7, 2015 Dear Colleague Letter which stated: "When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity."

The Court first found this guidance addressed an ambiguous regulation. Although the underlying regulation was unambiguous in that it differentiated between male and female students—it was ambiguous as to how maleness or femaleness was to be determined.  For example, regulation of school restrooms under "biological gender" requirements, rather than "gender identity" requirements, could cause confusion in application to transgender individuals, intersex individuals, individuals with hormonal conditions, and others. 

Second, the Court found the DOE's interpretation of its Title IX regulations was not plainly erroneous or inconsistent with the regulation or statute.  Specifically, definitions of "sex" contained in the American College Dictionary (1970) and Webster's Third New International Dictionary (1971)—which were used close in time to Title IX's enactment—indicated that the "hard-and-fast binary division on the basis of reproductive organs" "was not universally descriptive." Thus, the regulations assumed a student population in which "various indicators of sex all point in the same direction" but provided little direction on what was required when they did not.

Finally, the Fourth Circuit concluded that the DOE's interpretation of Title IX was the result of its "fair and considered judgment."  The court rejected arguments that government's position was "novel" or a "convenient litigating position," noting that novelty alone was insufficient to refuse deference and that the DOE had been consistently enforcing its position since 2014.  It also noted that the DOE's position regarding access to restrooms for transgender individuals was consistent with the position of other federal agencies, including the Occupational Safety and Health Administration, Equal Employment Opportunity Commission, Department of Housing and Urban Development, and the Office of Personnel Management.

The court concluded by noting that permitting G.G. to use the men's restroom did not threaten constitutional abuses of intrusion into privacy and that the record was devoid of evidence indicating that there was any danger implied by his use of the men's restroom.

The Fourth Circuit's decision drew a vocal dissent which pointed out concerns about safety, a lack of established case law regarding the court's interpretation of Title IX, and the traditional role of physical anatomy in organizing restrooms to prevent intrusions into privacy.

What G.G. Means for Schools and Others

The holding in G.G. provides binding legal authority to schools, colleges and universities within the Fourth Circuit—and guidance to those schools outside of the Fourth Circuit—in defining obligations to transgender students under Title IX.  While G.G. did not address locker room or shower facilities directly, language in dicta could potentially be used to expand this ruling in future decisions. An immediate complication for schools seeking to comply with the law is that G.G. directly conflicts with the bathroom bill recently passed in North Carolina, a state in the Fourth Circuit. 

Further complicating the landscape is that while G.G. is the first federal circuit court decision on whether or not Title IX should be interpreted to protect transgender students, other circuit courts may hear the same issue in the future and it is possible that a circuit split will emerge.

The complexities of complying with Title IX can be significant. These complexities are heightened by potential conflicts between the requirements of state and federal law, and the potential for inter-circuit conflict. We thus suggest school administrators and others confronting these issues reach out to legal counsel for assistance in understanding and navigating Title IX's requirements.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions