United States: Supreme Court Returns Transgender Bathroom Case To Lower Court

Last Updated: March 15 2017
Article by Lisa McGlynn and Jaklyn Wrigley

Today the U.S. Supreme Court announced that it would not entertain arguments in GG v. Gloucester County School Board, a case that would have been the Court's first significant opportunity to weigh in on gender identity issues. Instead, the Court remanded the matter back to the 4th Circuit Court of Appeals for further consideration in light of the Trump Administration's recent decision to withdraw federal guidance that instructed public schools to allow students to use the bathroom that corresponds to their gender identity.

Background: Transgender Teen Takes Bathroom Fight to the Supreme Court

Gavin Grimm, or "G.G." in court records, is a student at Gloucester High School. Gavin is a transgender male (i.e., he was born anatomically female). Before the start of his tenth grade year, he asked to be allowed to use the boy's restroom and to be identified using male pronouns. Initially, the school board granted his request.

However, after Gavin began using the boys' restroom, members of the community, some of whom referred to Gavin as a "young lady" or "freak," voiced concerns about bathroom privacy and safety. Gavin and his parents said he could not use the girls' restroom because of the negative reaction to his male presentation. They also cautioned that forcing Gavin to use the girls' restroom would cause him severe psychological distress, and requiring him to use a private facility would further isolate and stigmatize him.  

In December 2014, the school board implemented a policy limiting restroom and locker room use to students with the "corresponding biological genders," allowing "students with sincere gender identity issues" to use an "alternative private facility." Less than a week after the school board issued its policy, an attorney with the Department of Education's Office of Civil Rights provided an opinion letter that provided, "a school generally must treat transgender students consistent with their gender identity." This letter was unpublished, and did not carry the force of law.

With the help of the American Civil Liberties Union (ACLU), Gavin filed suit in June 2015. He alleged that by denying him access to the restroom that corresponded with his gender identity, the school board impermissibly discriminated against him on the basis of his sex in violation of Title IX of the U.S. Education Amendments of 1972 (a federal law that prohibits sex discrimination by schools) and the Equal Protection Clause of 14th Amendment to the United States Constitution. Among other things, Gavin cited to the Department of Education's opinion letter. Gavin also sought an injunction so that he could use the boy's restroom as of the start of the 2015-2016 school year.

In September 2015, the district court dismissed Gavin's lawsuit and denied his request for an injunction, reasoning that Title IX permits the assignment of separate bathrooms on the basis of one's biological sex. The district court did not decide whether "sex" includes gender identify. Further, the district court declined to give any weight to the Department of Education's interpretation of "sex," as expressed in its opinion letter. Gavin appealed the decision to the United States Court of Appeals for the 4th Circuit (the federal appellate court for Maryland, North Carolina, South Carolina, Virginia and West Virginia). 

The 4th Circuit reversed the district court's decision in April 2016, saying the lower court failed to give weight to the Department's interpretation of "sex." The appellate court recognized that Title IX provides that entities receiving federal funding – such as public schools – shall not discriminate on the basis of a person's sex. It also recognized that Title IX allows public schools to provide separate restrooms and other facilities on the basis of sex, so long as the facilities for both sexes are comparable. The appellate court noted, however, that Title IX is silent as to how these provisions apply to transgender students. 

The Department of Education attempted to resolve this ambiguity with the interpretation it expressed in the opinion letter. The Department's interpretation was the result of the Departments' "fair and considered judgment," and was not plainly erroneous or inconsistent with Title IX. Accordingly, the appellate court held that the Department's interpretation deserved deference. Simply that the opinion letter issued in response to the school board's implementation of the policy did not change this outcome. The appellate court then sent the matter back to the district court.

On remand, and after a few other procedural hurdles, the district court entered the preliminary injunction that it had previously denied. This time the school board appealed. While the appellate court initially declined to do so, the matter was ultimately stayed – or put on pause – pending a resolution by the U.S. Supreme Court.

Meanwhile, in May 2016, the Department of Education and the Department of Justice jointly published a "Dear Colleague Letter," which instructed public educational institutions to allow transgender students to use the bathrooms, locker rooms, and other facilities that correspond with their gender identity. This sparked a lawsuit by 13 states. Although the instruction was subsequently blocked by a court (read more here), it solidified the Department of Education's stance on transgender student rights in public schools.

In October 2016, the parties obtained the ultimate legal golden ticket: the Supreme Court agreed to hear the case. Specifically, the Court agreed to resolve two questions of law: (1) whether unpublished agency letters that do not carry the force of law and that are adopted as part of the very dispute in which deference is sought are entitled to deference; and (2) whether, with or without deference, the Department of Education's interpretation that Title IX requires transgender students in public schools to be treated consistent with their gender identities should be given effect.

The Case is Remanded

On February 22, 2017, just over a month after taking office, the Trump Administration withdrew the opinion letter that was the crux of the appellate court's opinion. The Court asked the parties to explain what impact the Trump Administration's decision had, if any. In advocating for their respective positions, both sides encouraged the Court to hear the case despite the Trump Administration's position.

Today, however, in a one-sentence order, the Court declined to do so. Instead, it sent the matter back to the 4th Circuit for further consideration in light of the "new" Department of Education's guidance.

Where Do Schools And Employers Go From Here?

By remanding this matter, the Supreme Court has managed to dodge (at least for now) a cause célèbre of the Obama administration: transgender rights. Despite this anti-climactic order, the bathroom debate has hardly been resolved. Not only are bathroom bills (i.e., proposed laws requiring gender congruent restroom usage) popping up across the country, but so are more expansive state-based civil rights laws (i.e., laws prohibiting discrimination on the basis of transgender status). 

This changing landscape, combined with the expanding defining of "sex" under Title VII of the Civil Rights Act and the Occupational Safety and Health Administration's guidelines that require employers to give transgender employees access to the restroom that corresponds with their gender identity, illustrates that an employer should be mindful before implementing bathroom policies. Employers would also be wise to consider other best practices for managing the transgender workforce. This may include amending their anti-discrimination and harassment policies to include transgender status gender identity, implementing a transition plan, and educating the workforce on relevant policies.

For public schools, today's order has no immediate impact, as the federal court's injunction blocking the Obama administration's attempted policy is still in effect. Only time will tell how the 4th Circuit decides this matter now that the opinion letter on which it based its original opinion is no longer in place. Regardless of how the appellate court rules, it is an almost certainty that the Supreme Court will once again be asked to enter the fray.

Meanwhile, other legal challengers are vying for the Court's attention on whether "sex" includes transgender status, and we are on the precipice of a potential dynamic shift with the nomination of Judge Neal Gorsuch (for analysis on his potential impact, read here). During this tumultuous time, employers of all sizes would be well-served to stay ahead of the curve by proactively addressing issues related to a transgender workforce, and public schools subject to these federal rules should similarly pay attention to these developments.

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
Lisa McGlynn
Jaklyn Wrigley
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