Virginia Transgender Case Marches On

by Tommy Fisher

On March 28, 2017, the United States Supreme Court will hear arguments in Gloucester County School Board v. G.G., more commonly referred to as the transgender restrooms case.  The primary issue in the case, whether public schools can be required to let transgender students use bathrooms that align with their gender identity, is one of the highest profile cases likely to be heard by a Supreme Court that has only eight sitting members since the death of Justice Antonin Scalia in February 2016.  How the Gloucester case is deciding could have a far reaching impact on public schools across the United States and merits watching closely by districts and their boards.

G.G. is a 17 year old student at Gloucester High.  G.G. was born female but identifies as a male.  He was allowed to use the boys’ restroom at his school for several weeks in 2014.  After some parents complained, the school board adopted a policy requiring students to use either the restroom that corresponds with their biological gender or a private, single-stall restroom.  G.G. sued the board, alleging that its policy is discriminatory and violates his civil rights.  The 4th Circuit Court of Appeals agreed with G.G. and ruled the case could go forward.  The appeals court deferred to the position of the Obama administration that Title IX bans sex discrimination in public school, and thus protects the rights of transgender students to use the bathroom that aligns with their gender identity. Shortly after the 4th Circuit’s decision, the U.S. Department of Education issued guidance to schools consistent with the decision.  The Supreme Court issued an order that stays the decision of the 4th Circuit.  As a result, G.G. will not be allowed to use the boys’ bathroom while the decision by the Supreme Court is pending.

Further compounding the transgender bathroom issue is a case being appealed to the 5th Circuit Court of Appeals, State of Texas, et al., v. United States of America, et al.  The district court Judge in the State of Texas case issued a nationwide injunction banning enforcement of an Education Department policy requiring schools to allow transgender students to use bathrooms and locker rooms corresponding to their gender identity.  The State of Texas case is being appealed to the U.S. 5th Circuit Court of Appeals.

So where does all of this leave the transgender bathroom in schools issue?  For now, the nationwide injunction bans the Department of Education from enforcing its policy.  If the 5th Circuit Court of Appeals upholds the injunction, it will remain in place nationwide.  If the Supreme Court deadlocks 4-4 in the G.G. case, which is a possibility given the current makeup of the eight member Court, the decision of a Texas District Court Judge could remain in place as long as the Supreme Court is unable resolve the issue.  Whatever the outcome, the issue certainly should be followed closely by districts as the regulatory and legal landscape on this issue evolves.

If you or your staff require further information or if an issue arises involving a transgender student, the attorneys at Leasor Crass stand ready to assist.