March 6, 2017 marks a significant development in the case of Gloucester v. G.G., the closely followed and highly publicized Virginia transgender student bathroom case. The Gloucester case involves a local school board policy that effectively denies a transgender male high school student use of his school’s male bathroom and, in turn, the student’s claim of unequal treatment and discrimination by the board based upon sex under Title IX. The United States Supreme Court granted certiorari back in October 2016 certifying only two issues for its consideration: 1) whether deference should extend to an unpublished letter by the United States Department of Education, Office of Civil Rights (OCR), which does not carry the weight of law and was adopted in the context of the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 transgender identity, and 2) without deference to the agency, should the Department’s specific interpretation of Title IX be given effect. The United States Supreme Court will not hear the Gloucester case this month as scheduled. The Court vacated the ruling below and remanded the case back to the 4th Circuit Court of Appeals for reconsideration of the issues, presumably to include whether Title IX’s prohibition against discrimination on the basis of sex extends to gender identity. The Court takes such action notwithstanding requests from both parties that the case proceeds as scheduled and be heard this term. Continue Reading The United States Supreme Court Sends Virginia Transgender Bathroom Case Back to the 4th Circuit

Connecticut Governor Dannel P. Malloy has acted quickly to respond to recent developments in Federal law affecting the rights of transgender students by issuing an executive order reasserting the State’s protections for transgender people.  Despite a change in Federal guidance, and as detailed below, Connecticut affords greater protections to transgender people than currently provided under Federal law.

In recent weeks, the Federal government has withdrawn support and guidance providing protections to transgender students.  As detailed in this blog earlier this month, the Federal government signaled its new policy position when the Department of Justice effectively decided not to pursue an appeal against a Texas federal district court’s order granting a nationwide injunction challenging the implementation of joint guidance issued by the Department of Justice and Department of Education regarding Title IX protections available to transgender students. The Department of Justice and Department of Education jointly followed suit on February 22, 2017 by rescinding the Obama-era guidance extending Title IX protections to transgender students.  https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.docx Continue Reading Connecticut Swiftly Responds to Federal Rollback of Transgender Student Protections

On February 10, 2017, the U. S. Department of Justice (DOJ) under the Trump administration withdrew a motion made in November 2016 under the Obama administration with the U.S. Circuit Court of Appeals for the 5th Circuit; in its motion, the DOJ objected to a Texas Federal Court judge’s nationwide ban on the enforcement by the Departments of Justice and Education (the Departments) of its interpretation of “sex” under Title IX.  On May 13, 2016, the Departments jointly released an eight page Dear Colleague Letter on Transgender Students explaining schools’ obligations under Title IX to protect students, including transgender students, from discrimination and harassment based upon sex.  The Departments treat a student’s gender identity as a student’s sex for purposes of Title IX and its implementing regulations.  The guidance confirmed that Title IX’s implementing regulations permits a school to provide sex-segregated facilities including restrooms under certain circumstances, but further elucidates that schools must allow transgender students access to such facilities consistent with their gender identity and may not require they use individual-user facilities when other students are not required to do so.¹ As recipients of federal funding, schools that fail to comply with the Departments’ guidance risk the possible loss of federal money. Continue Reading The United States Department of Justice Withdraws Its Objection to a Nationwide Order Banning the Implementation and Enforcement of the Departments of Justice and Education’s Guidance on Transgender Students

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.