Update to: Supreme Court’s Transgender Bathroom Decision of August 3, 2016

On May 13, 2016, the U.S. Departments of Education and Justice issued a joint Dear Colleague Letter (“DCL”) stating that discrimination on the basis of gender identity is equivalent to discrimination on the basis of sex. The DCL instructed school districts on how to provide access to activities and facilities for transgender students.  It also informed schools that failure to treat a transgender student the same as other students of the same gender identity could be considered discrimination under Title IX or its implementing regulations, thus putting federal funding in jeopardy.  Although the DCL is not law, it is considered a significant guidance document.

Following the publication of this DCL, thirteen states and two independent school districts filed suit in the U.S. District Court for the Northern District of Texas against the Departments of Education, Justice, and Labor, as well as the Equal Employment Opportunity Commission, and various agency officials. In State of Texas v. United States of America, the states applied for a preliminary injunction that would prevent the federal government from enforcing the DCL against schools and school boards.

On August 21, 2016, Judge Reed O’Connor of the Northern District of Texas released a detailed decision granting the injunction requested by the states. Judge O’Connor’s decision enjoins the Obama Administration from carrying out enforcement actions against schools and school districts regarding transgender issues nationwide.  Legal experts anticipate that the Department of Justice will appeal this decision.

This injunction does not prevent parents of transgender students from suing school districts for discrimination. Nor does the injunction prevent school districts from offering policies, such as bathroom or locker room access policies, that provide transgender students protections in accordance with the DCL.

Judge O’Connor’s decision was subsequent to the U.S. Court of Appeals for the Fourth Circuit’s decision in G.G. v. Gloucester County Public Schools to grant an injunction that allowed a transgender boy (a child born biologically female but now identifying as male) to use the boys’ bathrooms at his high school.  His decision is also subsequent to the U.S. Supreme Court’s August 3, 2016 decision to block the implementation of the G.G. v. Gloucester injunction.  The Supreme Court’s decision is not final, but it means that, as of right now, G.G. is not allowed to use the boys’ bathrooms.  The Gloucester County Public Schools is preparing its final appeal to the Supreme Court.  It’s anticipated that the Supreme Court will hear the Gloucester case in late 2016 or early 2017.

In light of the injunction granted in the State of Texas v. United States of America decision, the Obama Administration may decline to bring new legal actions against school districts that fail to provide locker room and bathroom access for transgender students in conformity with their gender identity.

School districts in Pennsylvania should be mindful of legal decisions that directly impact the Commonwealth. On March 31, 2015, the U.S. District Court for the Western District of Pennsylvania decided Johnston v. University of Pittsburgh, permitting the University of Pittsburgh to prohibit a transgender male student (a student born biologically female but now identifying as male) from using bathrooms and locker rooms that corresponded with his gender identity.  So far, the U.S. Court of Appeals for the Third Circuit, which includes Pennsylvania in its jurisdiction, has been silent on transgender student issues.  School districts should also be aware that, in addition to these national cases, there may be Commonwealth, county, and local laws and ordinances that may control transgender discrimination issues.

The injunction granted by Judge O’Connor shows that courts may be more willing to keep the status quo regarding transgender student issues while a case like G.G. v. Gloucester works its way to the U.S. Supreme Court.  Because Judge O’Connor’s decision will probably be subject to a Department of Justice legal challenge, and G.G. v. Gloucester is still being appealed, federal guidance should be followed until either a Third Circuit or Supreme Court decision is made that directly impacts Pennsylvania.

Maiello, Brungo & Maiello encourages all districts to be proactive about drafting policy language that reflects the changing legal landscape regarding transgender students. Districts are encouraged to review their existing policies for language about Title IX or transgender students.    Please contact us immediately if you have any questions regarding these recent legal decisions and how they could impact your district, or if your district requires assistance with drafting a new transgender student policy. Contact the school law team at education@mbm-law.net for more information.