Important Victory for Transgender Students Rights

BY JAY KAPLAN

On April 19, 2016, the 4th Circuit Court of Appeals became the first United States federal court to hold that the U.S. Department of Education's interpretation of Title IX (the federal civil rights law that prohibits discrimination on the basis of sex) and the issue of transgender students and restrooms must be followed by the federal courts. This means that public schools are required to permit transgender students to use restrooms consistent with their gender identity. This decision overturned a lower court ruling by federal district court Judge Robert Doumar, who had dismissed a claim by Gavin Grim, a teenage transgender male student attending high school in Gloucester, Virginia, that the school violated his Title IX rights by adopting a rule that he could use only restrooms designated for girls or unisex single-user restrooms.

The high school had accommodated Gavin when, at the beginning of his sophomore year, he informed school officials that he would be expressing his male gender identity, by permitting him to use the male restrooms. After several weeks without incident, some parents -- alerted to the situation by their children -- objected and pushed the school board to adopt a resolution limiting him to female facilities or unisex single user bathrooms.

The 4th Circuit Court of Appeals majority found the Department of Education's interpretation of Title IX regarding the use of bathroom facilities is entitled to deference, unless a school board can demonstrate that the interpretation is "clearly erroneous or inconsistent with the regulation or statute." The court majority found that the department's interpretation that in the case of a transgender student using a sex-segregated restroom facility, "the individual's sex as male or female is to be generally determined by reference to the student's gender identity."

This is a significant legal ruling on so many levels. First, as North Carolina and its notorious discriminatory trans bathroom law are within the 4th Circuit, the Court of Appeals has essentially said that North Carolina is in violation of Title IX -- that could have an impact on whether the state will continue to receive federal education dollars if it enforces the law. There is already a federal lawsuit against the state of North Carolina and its bathroom law, brought by the National ACLU and Lambda, challenging both the constitutionality of this law, as well as its violation of Title IX. Second, what the 4th Circuit Court of Appeals has done is agree with both the U.S. Department of Education and the Department of Justice, that to deny transgender students the right to use bathrooms in accordance with their gender identity is illegal sex discrimination.

Third, this decision, although not binding on states outside of the 4th Circuit, sends a message to state legislatures contemplating passing legislation similar to North Carolina's regarding transgender students and bathroom usage: "You will be violating Title IX and putting your federal education dollars at risk."

Hopefully this message will be heard by members of the Michigan Legislature, where State Sen. Casperson has announced that he will be introducing legislation mandating that students can only use restrooms in accordance with the gender assigned on their birth certificates, or in the alternative single-user unisex restrooms. Clearly such legislation is both unconstitutional and constitutes sex discrimination and should it become law in Michigan, the ACLU will challenge in federal court.

This past week a similar bathroom bill in Mississippi was pulled as a result of a state attorney general opinion that the state could lose its federal education funding if such provision became law. And perhaps, most importantly, the 4th Circuit decision provides additional guidance to Michigan school districts regarding how to handle the issue of transgender students and bathrooms. It makes it clear that it is no longer acceptable to require the transgender student to use a separate restroom, which can be both isolating and stigmatizing. The ruling also demonstrates that the Michigan State Board of Education's proposed guidance regarding the bathroom issue is both consistent with the what the federal government and federal courts are saying, as well as in compliance with federal civil rights laws.

Are you listening, lawmakers in Lansing?

Jay Kaplan is the staff attorney with the ACLU of Michigan LGBT Project. He can be reached at jkaplan@aclumich.org.
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