School’s Policy Prohibiting the Presence of a Transgender Student in the Restroom That Matches Their Gender Identity May Be Unlawful Discrimination

School boards have long known that gender stereotyping is not allowed under Title IX of the Education Amendment’s prohibition on discrimination “because of sex.” However, there has been some confusion over whether this prohibition also covers discrimination based upon gender identity (what sex a student identifies as) and whether Title IX requires schools to treat students consistent with their gender identities rather their biological sex.

There have been diverging partisan policies on whether it is lawful for school boards to refuse to let transgender students use multi-user restrooms designated for their opposite biological sex, and whether it is lawful for school boards to require transgender students to use either a unisex restroom or a restroom assigned to their biological sex.

The U.S. Supreme Court has agreed to take up the issue in Grimm v. Gloucester County School Board.

Gavin Grimm, a biological female who self-identifies as male, challenged a local Virginia school board’s policy that required him to use either a unisex restroom or a restroom assigned to members of his biological sex – i.e., girls. On February 19, 2021, Petitioner Gloucester County School Board filed their Petition asking the U.S. Supreme Court to decide whether Title IX requires a school to allow transgender students to use the restroom of their gender identities.  Respondent, transgender student Grim, has until May 25, 2021, to file a response. The high court will likely hear oral arguments in the fall and a decision is expected in the spring of 2022.

This will be the second time the Court considers the case. In 2016, the U.S. Supreme Court agreed to hear the case after the Fourth Circuit, relying upon a letter from the U.S. Department of Education (“DOE”) issued during the Obama Administration, ruled that Title IX required schools to treat students consistent with their gender identities rather than their biological sex. After the Trump Administration withdrew DOE’s opinion letter, the U.S. Supreme Court vacated the Fourth Circuit’s decision, and sent the case back to the Fourth Circuit to decide without the guidance from DOE’s opinion letter.

Evolving Policy Trends Affecting Grimm v. Gloucester County School Board

SCOTUS’s Intervening Ruling in Bostock May Extend to Gender Identity Discrimination In Schools

On June 15, 2020, the U.S. Supreme Court, in Bostock v. Clayton County, Georgia, held that Title VII’s prohibition on discrimination “because of sex” covers discrimination on the basis of gender identity and sexual orientation (i.e. transgender, lesbian, gay). As a result, the Florida Commission on Human Relations (FCHR) (a Fair Employment Practice Agency that investigates discrimination under the Florida Civil Rights Act and Title VII), announced it now accepts claims of sex discrimination based on gender identity or sexual orientation for investigation in employment complaints.

In the months following, the Fourth and Eleventh Circuit Courts relied on Bostock to support holdings that Title IX protects transgender students from discrimination on the basis of gender identity. After Grimm v. Gloucester County School Board was remanded, the Fourth Circuit, relying on Bostock, ruled that the school board’s policy violated Title IX. The Fourth Circuit concluded that Title IX prohibited schools from denying transgender students’ access to the restrooms assigned to the opposite biological sex. On August 7, 2020, the Eleventh Circuit in Adams v. School Board of St. Johns County (in Florida), concluded the same.

The Sixth and Seventh Circuits also had reached this conclusion before Bostock. In Whitaker v. Kenosha Unified School District, the Seventh Circuit concluded that a transgender boy was likely to succeed on his claim that the school district violated Title IX by excluding him from the boys’ restroom. In Dodds v. U.S. Department of Education, the Sixth Circuit concluded that the a school district that sought to exclude a transgender girl from the girls restroom was not likely to succeed on the claim because Title IX prohibits discrimination based on sex stereotyping and gender nonconformity.

Biden Administration

On January 20, 2021, President Biden issued an Executive Order (“EO”), declaring that it is the policy of his Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation. Relying on Bostock’s reasoning, Biden declared that laws that prohibit discrimination because of sex, including Title IX, also prohibit discrimination on the basis of gender identity or sexual orientation. The EO made clear the intent to enforce the position that sex discrimination under Title IX includes discrimination based on gender identity.

On February 11, 2021, the U.S. Department of Housing and Urban Development (HUD) determined that its Office of Fair Housing and Equal Opportunity would accept for filing and investigate all housing complaints of sex discrimination, including discrimination because of gender identity or sexual orientation. On February 25, 2021, FCHR determined that it too would apply the Florida Fair Housing Act such that discrimination because of sex includes sexual orientation and gender identity.

On March 26, 2021, the U.S. Department of Justice (“DOJ”), charged with coordination of the implementation and enforcement of Title IX by executive agencies, also declared that it is DOJ’s view that Bostock applies to Title IX.

Potential Significance for School Boards of SCOTUS Ruling

Following the flip-flops between the different administrations and the ruling in Bostock, there has been some confusion over whether Title IX covers gender identity discrimination and to what extent. The U.S. Supreme Court hopefully will resolve the confusion when it considers, for a second time, Gloucester County School Board’s Petition.

Specifically, it is anticipated that the high Court will decide whether Title IX or the Equal Protection Clause require schools to let transgender students use multi-user restrooms designated for the opposite biological sex, even when single-user restrooms are available for all students regardless of gender identity. Needless to say, the current administration’s Executive Order and the forthcoming ruling has far reaching implications for school boards throughout the nation, including Florida. By way of example, if Jane self-identifies as a girl, but has the biological sex of a boy, could a school board lose federal financial assistance or be liable for sex discrimination if it has a policy that requires Jane to use either a unisex restroom or a restroom assigned to her biological sex — i.e., a boys’ multi-stall restroom? As of now, it is uncertain. If the Court continues to follow the current trend, there is the possibility that school boards would no longer be able to lawfully require transgender students to either use a unisex restroom or a restroom assigned to members of their biological sex.

Regardless of which way the Court comes down, it will likely lay down clear guidelines on what is and what is not considered discrimination based on sex so that school boards can revise their transgender policies, training and orientation materials, and overall approaches to restroom use accordingly.