The issue of transgender restrooms continues to evolve, and last week, the Fourth Circuit Court of Appeals in Richmond, Virginia became the first federal court to weigh in on the issue. The ruling comes in the case of G.G. v. Gloucester County School Board. The case has received a great deal of attention due to the recent controversial legislative enactments in North Carolina and other states, which have attempted to legislate which restroom transgender persons must use.
G.G. was born female and when the vents of this lawsuit had taken place, had begun hormone therapy. G.G. legally changed his name to a traditionally male name and prior to his sophomore year, informed the school that he was a transgender boy. By all accounts, G.G. lived all aspects of his life as a boy. In late 2014, the Gloucester County School Board prohibited G.G. from using the male restroom in his high school. G.G. sued the School Board on the grounds that the school discriminated against him in violation of Title IX and the Equal Protection Clause of the Constitution, and he moved for a preliminary injunction to stop the school’s restroom prohibition. The District Court denied the injunction, holding that G.G. lacked sufficient evidence after it refused to consider hearsay expert testimony on the topic. It further held that using a unisex bathroom in the school was not unduly burdensome compared to the hardship to the other students caused by G.G’s presence in the men’s restroom. Finally, the District Court granted the School Board’s Rule 12(b)(6) Motion to Dismiss the Title IX allegations, claiming that requiring G.G. to use a restroom of his birth sex did not violate Title IX.[1]
On appeal, the Fourth Circuit reversed the District Court’s dismissal of Title IX and vacated and remanded the case back to the District Court on the injunction.[2]
Title IX of the Education Amendments Act of 1972 prohibits discrimination on the basis of sex under any educational program or activity receiving Federal financial assistance. To implement the requirements in Title IX, 34 C.F.R. § 106.33 allows for separate toilets, locker rooms, and showers on the basis of sex, provided the separate facilities are comparable. In considering G.G.’s Title IX claim, the District Court found that there was a distinction between sex and gender (to which § 106.33 was silent), and therefore, Title IX was not violated by the School Board’s actions. The Fourth Circuit disagreed and found that gender was implicated by Title IX. It then found ambiguity in the language of § 106.33, because the regulation considered only male and female sex identities—it was silent as to transgender persons. Because of this ambiguity in § 106.33, the Court gave deference to a Department of Education publication, which interpreted the regulation to mean that schools should allow a transgender person to use restrooms of their identity rather than their birth.
The School Board argued that allowing a transgender person to use the restroom of his new identity created a safety concern; however, the majority noted that the record was devoid of any evidence showing any additional danger existed. Taking that analysis further, the Court questioned why a transgender using a restroom created any greater safety risk than homosexuals using their same sex restroom. Indeed, under the school board’s safety analysis, homosexuals would require segregated restrooms just as transgender persons, despite no change in their birth gender.
It is important to note that the Court’s ruling is based on Title IX, which only extends to schools and federally funded locations. To that end, other Circuits will find the analysis persuasive, and the ruling’s reach will likely extend to schools and federally funded buildings in other jurisdictions. However, the scope of this ruling will not have a direct or immediate legal impact on private businesses because most businesses are not controlled by Title IX. As it stands, statutes and ordinances in states and local municipalities will control whether transgender individuals are permitted to use bathrooms which correspond to their gender identity in private buildings. Moreover, the Fourth Circuit was very clear that it is not in the business of dictating politics. It clearly stated that its ruling was based on the deference given to the Department of Education’s current interpretation of § 106.33. The Department is free to change its interpretation at any time, and that would alter the end result in this case. No word has been received as to whether or not an appeal is forthcoming.
[1] The court withheld ruling on the Equal Protection Clause claim.
[2] As to the injunction, the Court ruled that the Court was required to consider the hearsay evidence for a preliminary injunction.