Legality of Transgender Issues

2016 has been witness to the legal community’s struggles to address emerging transgender issues. There have been a flurry of court opinions since April 2016.  Finality may be approaching with the October 28, 2016 announcement by the United States Supreme Court that it will now decide the issue.  In advance of the Supreme Court’s action, it is important to review the court decisions that have brought transgender issues to the forefront.

 

The first major decision occurred on April 19, 2016 when the Fourth Circuit decided G. G. v. Gloucester County Public Schools in favor of G. G., a transgender boy who sought to use the boys’ bathroom at his high school in Virginia.  In overturning the District Court decision, the Fourth Circuit held that the School Board’s “transgender restroom policy” which required students to use the restroom corresponding with their biological sex and providing alternative facilities for students with “gender identity issues” violated Title IX and the United States Department of Education’s guidance equating an individual’s gender identity with sex. The Fourth Circuit decision resulted in the District Court enjoining the School District from enforcing its policy. Ultimately, the School District appealed the injunction to the Supreme Court.  In early August 2016, the United States Supreme Court stayed the District Court’s injunction until the Supreme Court decided whether or not to hear the case.  As stated earlier, the Supreme Court has now decided to hear the case on the issue of whether or not the term “sex” in Title IX includes one’s “gender identity.”  Until the Supreme Court’s final decision, the School District’s Policy continues to be followed.

 

In addition to the G.G. case, Texas sued the United States after the United States Department of Education issued a guidance letter interpreting the word “sex” in Title IX to include an individual’s gender identity and threatening to revoke federal funding from any school district that discriminated against an individual on the basis of their gender identity. A District Court judge in Texas issued a “nationwide injunction” purportedly barring the federal government from enforcing its guidance letter.  With the legality of this “nationwide injunction” in question, in late September 2016, two separate District Courts in Ohio and Wisconsin granted motions for preliminary injunctions filed by transgender students.  The effect of these injunctions was to permit the students to use the restrooms corresponding with their gender identity pending a determination of whether or not the School Districts’ policies requiring all students to utilize restrooms corresponding with their biological sex violated the students’ constitutional rights to Equal Protection and their rights under Title IX based on their gender identity.  Those cases remain pending.

 

None of the previously referenced cases are legally binding precedent on School Districts in Western Pennsylvania. The most recent decision affecting Pennsylvania School Districts is the Pennsylvania Western District Court’s decision in Johnston v. University of Pittsburgh which required a transgender individual to use the restroom of their biological sex.  Although the case is not binding precedent, it has strong persuasive value.  Recently, three transgender students in the Pine-Richland School District filed a complaint against Pine-Richland alleging that a recently enacted policy requiring all students to utilize the restrooms corresponding with their biological sex, or, alternatively, a unisex restroom, violates their constitutional rights to Equal Protection and their rights under Title IX. Although this case is still in the earliest stages of litigation, a decision in the case would directly affect schools in our area.

 

With the conflicting decisions of the District and Circuit Courts, it is not surprising that the United States Supreme Court decided to rule on the issue.  However, until the Supreme Court ultimately issues a decision, case law in this emerging area of the law will remain unsettled.  It is uncertain as to when a Supreme Court decision will be rendered due to the changes occurring at the national level.  Will the Supreme Court consider the case with its current eight Justices or wait for the appointment and confirmation of a ninth Justice?  The answer to this question may impact the ultimate decision of the Court itself.  Regardless, school districts must address transgender issues as they arise during this current school year.  Maiello, Brungo and Maiello encourages all districts to be proactive in addressing transgender issues based on the current legal landscape.  Districts are encouraged to review their existing policies for language about Title IX and its application to transgender students.  Besides the use of restroom facilities, transgender rights affect the use of locker rooms/changing areas, overnight field trips and school group outings and the reporting of data in student records.  Please contact us immediately if you have any questions, require assistance or would like our office to provide in service training for administrators and staff in how to address any transgender student issues.