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Transgender Student Restroom Access
A federal court in Virginia recently dismissed a transgender student’s Title IX claim that the school board’s sex-segregated restroom policy amounted to sex discrimination. GG v Gloucester Sch Bd, Docket No. 4:15-cv-54 (ED Va, 2015). The court declined to require the school to allow the student’s use of the restroom that matched his gender identity. While not binding in Michigan, this case provides insight as to how federal courts may analyze transgender student issues.
GG is a biologically female 16-year-old high school student who identifies as male. The school allowed GG to use the communal male restrooms. After receiving complaints from other parents, the board adopted a policy that limited restroom access to the student’s corresponding biological sex. To provide alternative facilities, the school installed three unisex single-stall restrooms. GG sued the school, alleging that the school board’s policy violated Title IX and the Equal Protection Clause of the Fourteenth Amendment.
Title IX prohibits sex-based discrimination in all federally-funded educational institutions. The court noted that Title IX permits schools to maintain separate living facilities for different sexes. In addition, a federal regulation allows schools to provide separate restrooms on the basis of sex so long as the restrooms for each sex are comparable.
The court reasoned that the board policy providing separate restrooms based on biological sex complied with the Title IX regulation. Because GG did not allege that the female restrooms or the single-stall restrooms were not comparable or inferior to male restrooms, GG failed to state a claim under Title IX.
The court’s ruling is contrary to guidance issued by the U.S. Department of Education’s Office for Civil Rights (“OCR”). OCR asserts that a school violates Title IX if the sex-segregated restroom policy does not treat transgender students in a manner consistent with each student’s gender identity. The court refused to recognize OCR’s guidance as binding, holding that the informal guidance cannot supersede federal regulation, which permits schools to segregate restroom access based on biological sex.
The law remains unsettled regarding transgender student issues. School officials should consider the individualized circumstances of each situation to avoid implementing potentially discriminatory policies.