By D|K’s School and Higher Education Law Team
Transgender considerations continue to evolve, particularly relative to the impact on the nation’s school districts, colleges and universities. As noted in our May 20, 2016 Legal Alert, the U.S. Department of Justice and Department of Education issued joint guidance in an effort to unify the nation’s approach. More recently, the 4th Circuit Court of Appeals held that a transgender student from Virginia should be allowed to use a boy’s restroom. The Appeals Court held that the School District violated Title IX of the education law, which bans discrimination on the basis of gender. This case was significant because it held that discrimination against gender extended to the issue of transgender and bathrooms. It allowed students to use restrooms based on their gender identity. However, the School Board believed this ruling was incorrect because the 4th Circuit incorrectly deferred to the view of President Obama’s Administration. The School District in turn appealed this decision to the Supreme Court.
The seventeen-year-old transgender student urged the Supreme Court to stay out of the student’s dispute with the Board. The School Board urged the Supreme Court to issue an injunction banning the student from using the boy’s bathroom this fall at school. The Court issued a decision on August 2, 2016 holding that the Virginia School Board may temporarily block the student who was born a girl from using the boy’s bathroom. The legal fight will continue, but the Court’s temporary decision preserving the status quo will allow them to consider the subject further if they so choose. This stay of the injunction will remain in effect until the Court decides whether it will hear the appeal. A future decision could come during the Court’s new term in October. The Office for Civil Rights and Department of Justice are also anticipated to provide additional guidance upon the ultimate outcome.
In addition, the Obama Administration recently addressed its May interpretation of a 1972 education law directed at schools allowing transgender students to use the bathroom matching their gender identity. The Administration stated that these guidance documents are merely expressions of agencies’ views as to what the law requires. Also, the guidance is not legally binding, nor does it create any new liability or legal requirements.
This continues to be an evolving issue in the Courts. In the interim, entities receiving federal money are encouraged to consider the U.S. Department of Justice and Department of Education’s joint guidance as issued on May 13, 2016. Click here for details. As always, if you have questions, please contact your Davis & Kuelthau, s.c. attorney.
Special thanks to Abby Busler, Summer Associate, for her assistance with drafting this article.