Clarity is just around the corner, or so it appears. On Friday, October 28, 2016, the Supreme Court of the United States agreed to hear an appeal from the School Board of Gloucester County, Virginia, regarding its policy that required students to use the bathrooms that correspond with their “birth sex” or “biological genders.” While doing so, the Court granted the school board’s emergency petition seeking a stay of the United States Court of Appeals for the 4th Circuit’s decision in G.G. ex rel. Grimm v. Gloucester County School Board. As such, this means that the board’s policy remains in effect until the Court issues its decision.
The 4th Circuit reversed a lower court’s decision and ruled that the board’s policy amounted to discrimination based on one’s sex in violation of Title IX of the Education Amendments of 1972. In reaching its decision, the 4th Circuit awarded great deference to the U.S. Department of Education’s Office for Civil Rights (“OCR”) guidance regarding the issue and found that “[w]hen a school elects to separate or treat students differently on the basis of sex … a school generally must treat transgender students consistent with their gender identity.” Since that decision, OCR released a “Dear Colleague Letter” on May 1, 2016, that further reinforced the notion that schools should treat transgender students in a manner that is consistent with their gender identity. In response, the United States District Court for the Northern District of Texas issued a preliminary injunction to attempt to prevent OCR from enforcing its guidance; however, as we discussed in our August 30, 2016 newsflash, the injunction did not apply to all states, including Pennsylvania.
With the highest court deciding to weigh in on the issue, answers should be right around the corner, right? The Supreme Court is specifically limiting its review to whether the Department of Educations’ interpretation of its own Title IX regulations on bathroom access should be awarded great deference. While the issue before the 4th Circuit was limited to which bathroom a transgender student should be permitted to use, determining the level of deference that the Department of Education should be allotted could provide some clear, legal guidance to schools across the country. But, with the election looming, some uncertainty remains. A new administration could push a position contradictory to that of OCR under the Obama administration. Further, there is no guarantee that the Senate will appoint a new justice to the Supreme Court. The possibility remains that the Court may vote along perceived ideological lines and in a 4-4 decision.
For now, we continue to advise schools to take the same course of action that they have always done and provide accommodations on an individualized basis, but consistent with current OCR enforcement standards presented in the “Dear Colleague Letter”. It is believed that the OCR will continue its current enforcement regime until the Supreme Court speaks sometime next year. If your district has any questions or concerns, please do not hesitate to contact the School Law Group at Stock and Leader.