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Fourth Circuit Rules That Title IX Protects Trans Student from Discrimination

Earlier this week the U.S. Court of Appeals for the Fourth Circuit held that a Virginia school board’s policy barring a transgender boy from using the boy’s restrooms at his school violates Title IX’s ban on discrimination on the basis of sex. The decision overturned the lower court’s dismissal of the student’s Title IX claim and makes clear that trans students who are barred from using the right restroom are protected by Title IX. The school’s policy of allowing the student to use the boy’s bathroom was in place for seven weeks without incident prior to being overturned by the local school board.  The Fourth Circuit’s decision against the school board has major implications for the transgender population, not just under Title IX but also for other statutes protecting against sex discrimination in the workplace and public accommodations.

Title IX of the Education Amendments of 1972 prohibits sex-based discrimination and retaliation in education. Title IX applies to education programs or activities that receive federal financial assistance, and protects students and school employees at educational institutions at all levels, from kindergarten through postgraduate schools. Increasingly, courts and federal agencies have determined that the protections of Title IX extend beyond traditional understandings of sex discrimination and sex stereotyping to include discrimination based on an individual’s transgender status. This decision by the Fourth Circuit marks the first federal appeals court to hold at that transgender people are protected under federal law from discrimination in education.

In G.G. v. Gloucester County School Board, the majority opinion written by Judge Henry Floyd held that the U.S. Department of Education’s interpretation of its own regulations is entitled to deference. The Department of Education interpretation concluded that when schools separate students on the basis of gender, generally schools must treat transgender students consistent with their gender identity. The lower court had dismissed G.G.’s claims, finding that the Department of Education’s interpretation was entitled to no deference and Title IX did not protect against gender identity discrimination.

Grounding its decision in administrative law and deference, the Fourth Circuit gave controlling weight to the department’s interpretation after finding that the regulation was ambiguous, and concluded that “[t]he Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual … the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.” The Court highlighted the evidence of animus in the record. For example, individuals speaking in favor of the school board policy had made unsupported claims that “non-transgender boys would come to school wearing dresses in order to gain access to the girls’ restrooms” and they “displayed hostility to G.G., including by referring pointedly to him as a ‘young lady.’”

A concurring opinion by Judge Andre Davis suggested that the appeals court could have gone further and entered a preliminary injunction against the school board instead of remanding the case to the trial court. Judge Niemeyer dissented, and would have held that Title IX does not include gender identity discrimination at all.

The Fourth Circuit’s decision is particularly momentous given the growing public attention and frequent attacks on the rights of trans individuals. The Department of Education reports a notable spike in schools requesting religious exemptions from Title IX’s application to gender identity discrimination. North Carolina, under the Fourth Circuit’s jurisdiction, recently enacted a law regulating the use of public school restrooms by transgender individuals and gutting individuals’ ability to bring causes of action under North Carolina’s civil rights law. The law, despite significant public criticism and a pending lawsuit, remains in effect. The decision may affect the political discourse and send a message to the increasing number of state legislatures that have targeted transgender individuals’ right to use the bathroom consistent with their gender identities by signaling the possible outcome of any court challenge. It may also give support to those suggesting that these laws jeopardize the federal funding for public schools and state universities who can no longer comply with Title IX if abiding by these discriminatory state laws.

This decision also has broad implications beyond Title IX and public schools, including for interpretation of other federal, state, and local prohibitions on discrimination in employment and other settings.  The Fourth Circuit reasoning concerning deference to the Education Department’s interpretation of “sex” discrimination as encompassing discrimination against transgender individuals will likely give added force to the interpretation of Title VII of the Civil Rights Act of 1964 by the U.S. Equal Employment Opportunity Commission.  As with the Department of Education, the EEOC now interprets Title VII to forbid workplace discrimination on the basis of gender identity as part of the law’s prohibition on sex discrimination. Since 2013, the EEOC has found that an employer’s restrictions on a transgender woman’s ability to use a common female restroom facility constitutes disparate treatment, that intentional misuse of a transgender employee’s new name and pronoun may constitute sex-based discrimination or harassment, and that an employer’s failure to revise its records pursuant to changes in gender identity stated a valid Title VII sex discrimination claim. The G.G. decision now presents a clear path for the Fourth Circuit and other state and federal courts to credit the EEOC’s position that the Title VII prohibition on sex discrimination protects transgender employees from workplace discrimination.

G.G.’s claims now head back to the Virginia district court with a path toward a permanent injunction against Gloucher County School Board’s ability to implement its discriminatory policy. As the case continues, it sends a message to schools and employers alike that it’s time to develop inclusive policies supportive of trans individuals to match the evolving jurisprudence in support of equality.

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This piece was originally posted by the American Constitution Society for Law and Policy. The full piece can be read on ACS’s blog here.

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