Last month, in G.G. v. Gloucester County School Board, the U.S. Fourth Circuit Court of Appeals issued a landmark ruling holding that the federal law prohibiting sex discrimination prohibits discrimination against transgender students. The U.S. Department of Education had issued its formal interpretation of Title IX and its regulations and held that “when a school elects to separate or treat students differently on the basis of sex … a school generally must treat transgender students consistent with their gender identity.” The appeals court held that it must defer to the agency’s interpretation of the law because the interpretation is reasonable and the law itself is ambiguous on the issue of transgender students. The decision sets federal legal precedent for Maryland, Virginia, West Virginia, North Carolina, and South Carolina.
In the case, a transgender male high school student came out to his peers and school faculty and requested permission to use the boys’ restrooms at his school. His teachers, school administrators, and fellow students were supportive and for weeks he used the boys’ restrooms without incident. However, eventually some local community members who were not supportive contacted the local school board and requested that the board deny him access to the boys’ restrooms. As a result, the school board held two meetings with dozens of public commenters who made inflammatory and hateful remarks about transgender individuals and argued that a parade of horribles would follow if gender identity was respected in the schools. As a result, the school board passed a resolution denying transgender students the right to use the bathroom that is consistent with their gender identity. The student then filed suit in federal court seeking a reversal of the school board’s decision.
The legal issue in the case was primarily whether Title IX requires schools to provide transgender students access to restrooms matching their gender identity. Title IX provides: “[n]o person … shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. §1681(a). The Department of Education’s regulations implementing Title IX allow the provision of “separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex.” 34 C.F.R. §106.33 . In an opinion letter dated January 7, 2015, the Department of Education interpreted how this regulation should apply to transgender individuals: “When a school elects to separate or treat students differently on the basis of sex … a school generally must treat transgender students consistent with their gender identity.”
The federal appeals court first found that the law itself is ambiguous: “[the law] is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms. We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading—determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity.” In light of the ambiguous nature of the law, the court then followed well-established rules of regulatory interpretation that require deference to an agency’s interpretation of its own regulation so long as that interpretation is reasonable and consistent with the purpose of the law.
The court ended its opinion by remanding to the lower federal court to determine whether the court should grant an injunction so that the student could resume using the bathroom that matches his gender identity.