The rights due to a student under Title IX continue to evolve. Title IX prohibits discrimination based on “sex,” which historically has meant that biological male and female students are required to be treated as equals. Recently, a California federal court held that “sex” discrimination also includes discrimination based on a student’s sexual orientation. Videckis v. Pepperdine University, 150 F. 3d 1151 (U.S.C.D. Calif. 2015).

Another federal court has now ruled that transgender students are also protected from discrimination under Title IX. On April 19, 2016, the United States Court of Appeals for the Fourth Circuit in G.G. v. Gloucester County School Board, 822 F.3d 709 (4^th Cir. 2016) reversed the lower court’s dismissal of a male transgender high school student’s Title IX claim that he was discriminated against when his school did not permit him to use the boys’ bathroom. The plaintiff, born a female, identifies as male.

The biologically female student was not treated differently from the other students; all students were offered the use of a single-sex bathroom corresponding to their biological sex, or the use of one of three single-stall unisex restrooms, which were open to all students regardless of biological sex or gender identity. The plaintiff sought to be treated in conformance with his male gender identity and permitted to use the boys’ bathroom. The Court agreed, although not unanimously; it was a 2-1 decision with a lengthy dissenting opinion. The decision was based in large part on the Court’s deference to a January 7, 2015 opinion letter issued by the Department of Education’s (“DOE”) in which the DOE wrote that if a school treats students differently on the basis of their sex, it must treat transgender students according to their gender identity.

Following the Fourth Circuit’s decision, DOE promptly issued guidance for schools nationwide in their treatment of transgender students. The DOE issued a “Dear Colleague Letter” (“Letter”) on May 13, 2016, summarizing schools’ obligations regarding transgender students. The Letter states that Title IX’s prohibition against sex discrimination “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.”

The Letter addresses four areas:

1. Safety and nondiscriminatory environment
2. Identification documents, names, and pronouns
3. Sex-segregated activities and facilities (requiring schools to “allow transgender students access to such facilities consistent with their gender identity”)
4. Privacy and education records.

Interestingly, the Gloucester County School Board had responded positively to the student’s requests under each of the foregoing categories, with one exception – allowing the student to use the boys’ bathroom. That decision is what resulted in the lawsuit.

Recent Court Developments:

DOE’s Letter has been challenged by at least twenty-three states. See Texas v. United States of America, No. 7:16-cv-00054 (N.D. Tex. May 25, 2016) (challenge by thirteen states); Nebraska v. United States of America, No. 4:16-cv-03117 (D. Neb. July 8, 2016) (challenge by ten states). The Texas Court issued a nationwide preliminary injunction against enforcement of the Letter on August 21, 2016.

On August 3, 2016, the United States Supreme Court stayed the Fourth Circuit’s Gloucester decision pending the filing and consideration of the School Board’s petition for certiorari. The practical effect of which is that the student is for now prohibited from using the boy’s bathroom.

On October 28, 2016 the Supreme Court granted the Gloucester County Board of Education’s Petition for Certiorari on two of the three issues presented:

(1) Whether deference should be given by a court to an unpublished agency letter that does not carry the force of law and is issued in the context of the dispute in which deference is sought;

(2) Whether or not deference is given to DOE, should its specific interpretation of Title IX be given effect.

It is likely that only one of the issues in Gloucester will survive long enough to be argued in the Supreme Court. The incoming Administration has expressed the view that the issue of transgender bathrooms should be handled at the local level, not the federal level. This could signal that once the new Secretary of Education takes office, DOE will simply withdraw its May 13, 2016 Dear Colleague Letter and its January 7, 2015 Opinion Letter. Withdrawing the Letters arguably moots the first issue on which the Supreme Court agreed to hear the case. The second issue on which the Court granted certiorari, however, would arguably survive even if the Letters are withdrawn. That is, the Supreme Court could still hear argument on the issue of whether Title IX should be interpreted to prohibit discrimination based on gender identity. The Petitioner school board does not have any reason to dismiss the appeal based on that issue because if it dismisses the appeal, the stay of the Fourth Circuit’s decision would likely be vacated, leaving intact the Fourth Circuit’s decision against the school board.