Federal Appellate Court Rules in Favor of Transgender Student/Reverses Trial Court Ruling Favoring School District

In a case receiving nationwide attention, the Fourth Circuit Court of Appeals recently ruled in favor of a transgender student requesting use of the restroom of his identified gender.

In G.G. v. Gloucester County School Board, the student, G.G., was born female but has identified as male since approximately the age of 12. In August 2014, G.G. and his mother notified the administration of Gloucester High School that G.G. is transgender and changed his legal name. The Gloucester High School administration changed his school records to reflect his new name and granted G.G.’s request to use the male restroom.

Over the next two months, however, the Gloucester County School Board allowed for public comment at its Board meetings to discuss a proposed resolution to limit restroom and locker room facilities to students of the corresponding biological genders and to provide students with “gender identity issues” with “alternative appropriate facilities.” At both meetings, a majority of those who spoke favored the resolution, and the Board ultimately voted 6-1 to pass the resolution. Although the high school thereafter added several single stall restrooms in the school and made modifications to increase privacy in all restrooms, G.G. refused to use either the single-stall or the female facilities. G.G. then filed a motion for a preliminary injunction in federal court under the Equal Protection Clause and Title IX.

The lower court found that Title IX expressly allows schools to provide separate bathroom facilities based upon sex so long as the bathrooms are comparable and dismissed G.G.’s Title IX claim. The lower court refused to address G.G.’s Equal Protection claim.

The Fourth Circuit reversed the lower court’s dismissal of G.G.’s Title IX claim, finding that the lower court failed to give appropriate “deference” to the Department of Education’s Title IX regulations. The court referred to OCR’s January 7, 2015, opinion letter finding that schools “generally must treat transgender students consistent with their gender identity.” The court determined that OCR’s interpretation of the regulations would be given deference because the Board could not show that OCR’s interpretation of the regulations was plainly erroneous or inconsistent with the regulation or statute.

Further, the Fourth Circuit found that the lower court “used the wrong evidentiary standard in addressing G.G.’s motion for a preliminary injunction,” and as a result vacated the lower court’s denial.

Ultimately, the case was returned to the trial court for further proceedings. Despite G.G.’s request, the Fourth Circuit denied G.G.’s request for reassignment to a different judge on remand.  Following the decision, the Gloucester County School Board announced at their Board meeting that they would request en banc review of the decision by the Fourth Circuit Court of Appeals, asking the full Fourth Circuit to review the case.

While not governing law in Illinois, this case illustrates the difficulties facing school administrators attempting to accommodate the needs of transgender students. To assist school administrators faced with these difficulties, the National School Boards Association recently published 2016 Transgender Students in Schools: Frequently Asked Questions and Answers for Public School Boards and Staff available at: https://cdn-files.nsba.org/s3fs-public/reports/2016_Transgender_Guide.pdf?oMOU69muk_wm5xRnIlM75MnBqQ9H5o7S.

Contact Michelle Todd, Stephanie Jones, or Kaitlin Atlas with your transgender student accommodation inquiries.

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