On Friday, October 28, 2016, the United States Supreme Court announced that it will hear an appeal from a ruling by the 4th Circuit in the controversial case of G.G. v. Gloucester County School Board, 116 LRP 15374 (4th Cir. 04/19/16). In Gloucester, a transgender male high school student sought a preliminary injunction to allow his use of a school’s restroom consistent with his male gender identity (G.G. v. Gloucester County Sch. Bd., No. 4:15-cv-54 (E.D. Va. June 29, 2015). The student alleges that his local Virginia school district denied him equal treatment and subjected him to discrimination based on sex in violation of the Title IX by passing a board policy that prohibited his continued use of the boys’ restroom for not being “biologically male.” The highest court will consider only two issues on appeal: 1) whether deference should extend to an unpublished letter by the U.S. Department of Education, Office of Civil Rights (OCR) , which does not carry the weight of law and was adopted in the context of the dispute at hand, indicating that Title IX applies to gender identity, and 2) with or without deference to the agency, should the Department’s specific interpretation of Title IX be given effect.
In G.G. v. Gloucester County Sch. Bd., No. 4:15-cv-54 (E.D. Va. June 29, 2015), a three-member panel of the District Court found that the student failed to state a claim under Title IX and also denied the preliminary injunction. The District Court did not agree that transgender students must be treated in accordance with their gender identity. The United States Department of Justice supported the student’s preliminary injunction arguing that discrimination based on a person’s gender identity, a person’s transgender status, or a person’s nonconformity with sex stereotypes constitutes discrimination based on sex.
On April 19, 2016, the U.S. Court of Appeals for the 4th Circuit reversed and remanded the lower court’s ruling in the Gloucester case. The 4th Circuit concluded that the District Court erred in two ways: 1) applying the wrong standard for preliminary injunctions; and 2) by failing to give deference to the Department of Education’s interpretation of its own Title IX regulations as set out in OCR’s Letter to Prince. In May 2016, the 4th Circuit stayed the ruling in response to an emergency petition filed by the school board. Until the United State Supreme Court’s decision, the school board’s policy requiring bathroom use by biological sex remains in effect.
Legal challenges similar to the one at the heart of Gloucester case are occurring nationwide. These challenges are being brought by states, civil rights advocacy groups, concerned parents and school districts that either support or oppose the use of public facilities such as school bathroom and locker rooms by transgender students based upon their gender identity. The death of Justice Antonin Scalia in early 2016 created a vacancy on the United States Supreme Court that has yet to be filled. An appointment of a Justice to the Court is expected sometime after the November 2016 Presidential election, but depending upon the outcome of the election, the vacancy may not be filled until 2017. Upon appointment of a Justice, it is expected that the Court will hear and decide the Gloucester case with a decision predicted for either late spring or early summer. Stay tuned as the Supreme Court’s ruling promises to have far reaching implications for transgender individuals, school districts, and our nation.