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More Locker Room Talk: Transgender Accommodations in Schools

The spotlight continues to shine on the issue of transgender accommodations in schools. Unfortunately, school districts in Pennsylvania were deprived of having clear federal authority on this issue when a settlement was recently reached in Johnston v. University of Pittsburgh before the United States Court of Appeals for the Third Circuit could weigh in on this matter. Despite a few out-of-state legislative attempts, it is clear that a national legal trend has emerged to support the guidance set forth by United States Department of Education Office for Civil Rights (OCR) and the Obama Administration.

This trend gained momentum when the Fourth Circuit, the highest federal court to weigh in on this matter, overturned the Eastern District of Virginia’s decision in G.G. ex rel. Grimm v. Gloucester County School Board. In that case, school officials were initially very supportive of G.G., a transgender male student, and allowed him to use the boys’ restroom. This accommodation caused very few problems within the school, but members of the community were outraged. Succumbing to public pressure, the local school board enacted a new policy limiting access to and use of student bathrooms and locker rooms based on a student’s biological, or birth gender. The District Court ruled that G.G.’s sex was female and, as such, requiring him to use the female bathrooms did not violate Title IX of the Education Amendments Act of 1972.

On appeal, the 4th Circuit found that the Title IX regulations that permitted “separate toilet, locker room, and shower facilities on the basis of sex” were ambiguous because they failed to address how this standard would apply to transgender students. As a result, the court relied heavily on a January 7, 2015, opinion letter issued by OCR where it stated “[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.” Based on this guidance, the 4th Circuit ruled in favor of the student. Despite very similar material facts, the court found the decision in Johnston to be unpersuasive since that court neglected to consider the Department’s interpretation of its own regulations.

On May 13, 2016, OCR, in conjunction with the Department of Justice (DOJ), issued a Dear Colleague letter offering “significant guidance” regarding a district’s Title IX obligations to transgender students. As stated, it does not set forth additional legal requirements for transgender accommodations, but does provide information and examples to demonstrate how the two federal agencies will determine whether districts are in compliance. The letter makes it very clear that a student’s gender identity will be treated as the student’s sex, and, in the eyes of these agencies, refusing to allow a transgender student to use the bathroom or locker room consistent with his/her gender identity is a violation of Title IX because it constitutes discrimination based on sex. It further adds that “the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.” In fact, failure to treat a student in a manner consistent with his/her gender identity could, in and of itself, create a hostile environment thus violating Title IX. With this in mind, OCR and DOJ explicitly require that transgender students be able to use the restroom and locker room consistent with their gender identity.  Districts may make individual-user options available to any student who voluntarily seeks additional privacy.

The 4th Circuit’s decision and the recent direction offered by OCR and DOJ provides guidance to Pennsylvania districts; however, due to the rapidly changing legal landscape, it is likely premature to adopt a formal Board policy at this time. Furthermore, it is possible that a future administration may implement a different policy regarding transgender accommodations or Congress may decide to revise Title IX altogether. With this in mind, our School Law Group can assist your district in developing administrative regulations and training that will ensure that you are in compliance with Title IX in the day-to-day operation of your schools.

We have reviewed the letter to President Obama dated May 17, 2016, initiated by Pennsylvania State Representative Daryl Metcalfe, and it does not change our opinion as to the proper course of action as described in this update.

We remain confident in our advice and approach to this issue. If you or your Board President have any questions, please feel free to contact our School Law Group.

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