Transgender Students Update: Michigan Guidance and Recent Federal Court Decisions

Following a trend set by several federal courts in the past year, two more federal courts recently issued opinions supporting transgender students’ rights to access restrooms and locker rooms that correspond with their gender identity. Grimm v Gloucester Co Sch Bd, Case No. 4-54 (ED Va, May 22, 2018); Doe v Boyertown Area Sch Dist, Case No. 17-3113 (CA 3, May 24, 2018).

Grimm involves a transgender student’s challenge to a school’s policy requiring students to use re­strooms consistent with their biological sex. After the Fourth Circuit Court of Appeals instructed the Virginia federal court to consider whether the case should con­tinue because Grimm had graduated, Grimm filed an amended complaint seeking a permanent injunction to allow him to use the same restrooms as other male alumni.

The school moved to dismiss Grimm’s amended complaint and argued that the complaint should be dismissed because the school’s policy is nondiscriminatory and applies to all students equally. The Virginia federal court denied the motion, noting that the policy allows the school to treat transgender students differently based on the school’s view of which gender a student should be or which physiolog­ical characteristics a student should have. The court concluded that such discrimination claims based on a student’s transgender status may be brought pursuant to Title IX under unlawful gender stereotyping.

The court also analyzed the school’s policy under the Equal Protection Clause and determined that it was not substantially related to achieving an im­portant government interest. The court stated that the school’s argument that the policy protected student privacy rights “r[a]ng hollow” and was based on “sheer conjecture and abstraction.” Since the com­plaint was not dismissed, this case remains before the court.

In Boyertown, the Third Circuit Court of Appeals unanimously denied a motion for a preliminary injunc­tion brought by a group of students seeking to prevent their school from enforcing a policy that permitted students to use restrooms and locker rooms consistent with their gender identity. The students claimed that this policy violated their constitutional right to “bodily privacy” and federal sex discrimination laws. The Third Circuit returned its decision denying the motion only 15 minutes after oral argument concluded. The court’s judgment stated that the students had not demonstrated either that they were likely to succeed on the merits of their claim or that they would be irreparably harmed if the policy remained in place.

The presence of transgender students in the school’s restrooms or locker rooms, the court found, is no more offensive to the students’ constitutional or state law privacy rights than the presence of students who are not transgender. The school’s current policy does not require a student to disrobe in front of an­other student because there are privacy stalls and single-use restrooms available. Allowing transgender students to request to use the facilities that corre­spond with their gender identity serves a compelling state interest in preventing discrimination against transgender students.

The court also found that the current policy does not violate Title IX and suggested that a policy barring transgender students from restrooms based on gender identity could create a Title IX violation.

Additionally, as previously reported in the April 27, 2017 and March 29, 2018 editions of School Law Notes, federal courts have interpreted discrimina­tion based on gender identity and sexual orientation as sex-based discrimination in the employment context under Title VII of the Civil Rights Act of 1964. On May 21, 2018, the Michigan Civil Rights Commis­sion echoed these decisions in an “interpretive state­ment.” The statement noted that the Elliott-Larsen Civil Rights Act’s prohibition against sex discrimina­tion in employment, housing, and public accommoda­tions includes “discrimination because of gender identity and sexual orientation.” Although the state­ment is without the force of law, the Michigan De­partment of Civil Rights will process complaints that allege discrimination on the basis of gender identity and sexual orientation.

Litigation across the nation continues to evolve on issues invoking transgender rights. Thus far, federal courts have interpreted Title VII and Title IX to include discrimination on the basis of gender identity and sexual orientation. Please contact a Thrun Law Firm attorney if you would like assistance developing policy or if you have questions about accommodating a transgender student or employee.