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The Department of Justice (DOJ) and Department of Education (ED) recently filed a “statement of interest” asserting that discrimination on the basis of transgender status is prohibited under federal law.

In the case of Tooley v. Van Buren Public Schools, the plaintiff, a student who was a female at birth, but whose gender identity is male, alleged that various defendants, including his public school district, discriminated against him in violation of Title IX of the Education Amendments of 1972 (Title IX), Title IV of the Civil Rights Act of 1964(Title IV), and the Equal Protection Clause of the Fourteenth Amendment.

The plaintiff alleged that his school denied him access to the boys’ restroom, instead requiring him to use a staff women’s restroom located next to the cafeteria, and that when his mother informed staff that a student began bullying him after seeing him exit this restroom, she was told her son was being “overly sensitive.” The plaintiff also asserted that this same student later called him a fag and threatened to rape him, the latter of which resulted in the plaintiff running away so fast he fell and broke his arm.

The plaintiff also alleged that school personnel addressed him as “Olivia,” his name assigned at birth, and referred to him using female pronouns despite his consistent presentation of his male gender identity and his mother’s requests that he be addressed using his preferred name and male pronouns. Further, the plaintiff claimed that school staff “outed” him as transgender to other students and parents of other students who then ostracized him.

DOJ/ED asserts that although “transgender” is not an explicit suspect classification, the relevant suspect classification in this case is sex, which includes gender, gender identity, transgender status, and nonconformity to sex stereotypes. Additionally, the DOJ/ED asserts that plaintiffs may rely on evidence of sex stereotyping to establish discrimination on the basis of sex and that courts must apply “heightened scrutiny” when analyzing a school district’s defense of any sex discrimination actions, a level of analysis that can be burdensome for a school district to overcome.

The DOJ/ED also urges courts to closely analyze any argument by the school that restroom separation is done for the purpose of “safety,” as such safety concerns may be speculative, and many transgender students across the country safely use restrooms according to their gender identity.

School districts throughout our state continue to address transgender issues. For more information regarding transgender issues in schools, please contact Nancy Krent or Michelle Todd.