A federal court recently dismissed a high school student’s challenge to a school board’s restroom policy. The court in G.G. v. Gloucester County School Board, 2015 WL 5560190, granted the school board’s motion to dismiss on the basis that federal law expressly permits schools to maintain separate sex-designated facilities. The court likewise denied the student’s motion for a preliminary injunction, which sought to allow the student to use the boys’ bathroom, based on the student’s failure to provide adequate proof that he would suffer hardship or irreparable injury. Notably, the United States District Court for the Eastern District of Virginia, located in the Fourth Circuit of the U.S. Courts of Federal Appeals does not govern Illinois.
The student, G.G., was born a female, but has identified as a male since approximately the age of twelve. In August 2014, G.G. and his mother notified the administration at Gloucester High School (“GHS”), that G.G. is transgender and has changed his legal name. The GHS 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 private 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 to 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. filed a motion for preliminary injunction in federal court, under the Equal Protection Clause of the Fourteenth Amendment and Title IX of the Education Amendments of 1972, and the Board filed a motion to dismiss. The Departments of Justice and Education filed a joint Statement of Interest, asserting that the board’s policy violated Title IX. The court concluded, however, that the DOE’s regulations implementing Title IX expressly allow schools to provide separate bathroom facilities based upon sex, so long as the bathrooms are comparable. The court further explained that the DOE/DOJ’s “newfound” interpretation of Title IX to entitle transgender students to use restrooms or locker rooms of the gender with which they identify contradicts the DOE’s own regulations, and therefore, is not entitled to judicial deference. The court noted that the DOE could amend its regulations; however, until it does so, the court declined to defer to a DOE/DOJ Letter of Guidance or Statement of Interest. As a result, the court dismissed G.G.’s Title IX claim.
The court refused to address the Equal Protection claim, explaining that G.G. had not submitted enough evidence to establish that the balance of hardships weigh in his favor to be awarded the preliminary injunction. G.G. claimed he felt stigmatized and isolated when he used the nurse’s or the unisex restrooms; that women object to his presence in the girls’ restroom; that he suffered a urinary tract infection from holding in his urine due to his refusal to use the restroom options; and that he suffers from a severe degree of Gender Dysphoria. However, the court explained that the Fourth Circuit, as well as several other federal court circuits, has recognized a constitutional right to bodily privacy, and that G.G.’s presence in the male restroom would infringe upon the privacy of other students. The court also explained that the board has a heightened interest in the school setting to uphold this privacy interest because the students are almost all minors, and the board must provide safe and appropriate facilities for its students.
This case aligns with the reasoning set forth in another federal district court, located in the Third Circuit, which also does not govern Illinois, holding that sex discrimination under Title IX does not include discrimination against transgender individuals. On the other hand, this case is contrary to the position of the DOJ and DOE. Moreover, both the Illinois Human Rights Act and the Illinois State Board of Education regulations prohibit schools from discriminating against students on the basis of sexual orientation and gender identity – two broader terms that were not considered in these cases.
While not governing law in Illinois, these cases illustrate the difficulties facing school administrators attempting to accommodate the needs of transgender students.
Contact Michelle Todd or Laura Pavlik regarding your transgender student accommodation inquiries.