In August 2020, two federal appeals courts upheld the right of transgender students to use the school restroom and locker room facilities that align with their gender identity, finding that the school district policies barring such use violated the students’ equal protection rights and Title IX. In both cases, the federal appeals courts referenced the recent U.S. Supreme Court decision in Bostock v. Clayton County, Georgia, the Court’s June 2020 decision holding that employment discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964 includes discrimination based on a person’s transgender status. See our article on the Bostock case here.
In Adams v. School Board of St. John County, Florida, a transgender male student was allowed to use the restroom aligned with his gender identity for the first nine weeks of high school. After receiving a complaint, the school reversed its policy and required the student to use female facilities or a gender-neutral, single-stall facility in the school office. The student and his mother sued the school district, and a Florida federal district court ruled in his favor. The school district appealed. On August 7, 2020, the U.S. Court of Appeals for the Eleventh Circuit upheld the district court’s decision. The appellate court held that the school’s policy requiring different treatment of students based on sex (i.e., transgender status) violated Title IX because it resulted in discrimination based on sex. Additionally, because the policy resulted in different treatment of transgender students because of their transgender status, the student’s rights under the Equal Protection Clause in the U.S. Constitution also was violated.
This decision was the first federal appeals court decision regarding the rights of transgender students since the U.S. Supreme Court’s decision in Bostock. The appellate court’s decision specifically cited to Bostock, stating that “…With Bostock’s guidance, we conclude that Title IX, like Title VII, prohibits discrimination against a person because he is transgender, because this constitutes discrimination based on sex.” And in ruling for the student’s equal protection claim, the appellate court held that the school district’s policy “…singles out transgender students for differential treatment because they are transgender.”
A few weeks later, on August 26, 2020, the U.S. Court of Appeals for the Fourth Circuit issued a decision in the long-running case Grimm v. Gloucester County School Board, Virginia. We have reported on this case over the years, most recently here. The student, a transgender male, initially filed a lawsuit against the school board in 2015, citing a violation of his rights under Title IX and requesting access to male facilities. He was initially given permission to use male facilities at the high school, but the school board amended its bathroom access policy to limit access based on biological gender only. The Virginia federal district court at the time dismissed the student’s complaint, but the federal appeals court overturned that decision. The U.S. Supreme Court ultimately sent the case back to the federal appeals court after the Trump Administration withdrew previous guidance extending protections under Title IX to transgender students. The student, who graduated from high school in 2017, then amended his complaint for nominal damages and a declaration by the school board that his rights had been violated under Title IX and the Equal Protection Clause. The complaint also sought an injunction to allow the student to use male facilities should he visit the district as an alumni. In July 2019, the federal district court ruled for the student on his amended complaint. Last month, the federal appeals court upheld that ruling, finding that the school board violated Title IX and the student’s equal protection rights.
The Grimm decision was the second decision by a federal appeals court that held that transgender student rights are protected under Title IX and cited to the U.S. Supreme Court’s decision in Bostock. In Grimm, the court stated, “After the Supreme Court’s recent decision in Bostock…, we have little difficulty holding that a bathroom policy precluding [the student] from using the boys restrooms discriminated against him ‘on the basis of sex.’” As to the student’s equal protection claim, the court said the board’s policy of requiring a transgender student to use either a single-stall restroom or a restroom matching their “biological gender” was not substantially related to its goal of protecting students’ privacy.
These recent decisions are important because they suggest that courts continue to view Title IX and the Equal Protection Clause as extending protections to transgender students by providing them with accommodations, such as school facility access, that align with their gender identity. That is consistent with the U.S. Court of Appeals for the Seventh Circuit’s (which has jurisdiction over Illinois) 2017 decision in Whitaker v. Kenosha Unified School District, where the court affirmed a Wisconsin federal district court’s decision to allow the student to use the school facilities that aligned with his gender identity, finding that the school district’s policy prohibiting access was likely discriminatory and a violation of Title IX and the Equal Protection Clause. See our articles here and here. However, in recent years, the Trump Administration has withdrawn federal guidance on the rights of transgender students, and the U.S. Department of Education Office of Civil Rights has issued findings that protections afforded to transgender students violate Title IX and impinge on the rights of cisgender students. See our article here. In the end, the U.S. Supreme Court will have the final say on this issue—and now more than ever it seems that such a case may be headed for the Supreme Court.
As always, HLERK will follow and report on the developments in this area of the law.
For questions on these cases or accommodating transgender students in your school, please contact an attorney in our Students/Special Education practice group.