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  • Federal Court Dismisses Transgender Student’s Title IX Claims in Restroom Lawsuit

    Last week, U.S. District Judge Robert G. Doumar ruled that a school board’s decision to prohibit a transgender student from using the male restroom does not constitute unlawful discrimination under Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq. (“Title IX”), a federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity.

    By way of brief background, Gavin Grimm (“Grimm”) is a 16-year old transgender student who was born female but identifies as a male. Beginning in October 2014, with the consent of school officials, Grimm began using the boys’ restroom at Gloucester High School, located in Virginia. Grimm was permitted to use the boys’ restroom for seven weeks without issue.

    However, in December 2014, the Gloucester County School Board (the “School Board”) voted 6 to 1 to limit the use of girls’ and boys’ restrooms to students of “the corresponding biological genders…students with gender identity issues shall be provided an alternative appropriate private facility.” The passage of this policy left Grimm with two options: Grimm could either use the restroom associated with Grimm’s biological sex (the girls’ restroom) or Grimm could use the single-stall private restroom located in the nurse’s office.

    In June 2015, the ACLU filed a federal lawsuit on behalf of Grimm against the School Board for sex discrimination. Specifically, the lawsuit alleges that the School Board’s policy discriminates against transgender students in violation of both Title IX and the Equal Protection Clause of the 14th Amendment by requiring them to use “alternative” restrooms instead of the public facilities that are available to all other students. The lawsuit requests damages, a court order mandating the School Board to allow Grimm to utilize the boys’ restroom when school starts in September, and a declaration that the School Board’s policy, as it pertains to transgender students, violates federal law.

    Advocates of the School Board’s policy argue that allowing Grimm to use the boys’ restroom “violated the privacy of other students.” To the contrary, the lawsuit alleges that the policy “isolates Gavin from his peers…to avoid the stigma of having to use separate bathrooms, Gavin has tried to avoid using any restroom during the school day.” “Any student – transgender or not – should be free to use single-stall restrooms if they want extra privacy. Instead of protecting the privacy of all students, the school board has chosen to single out transgender students as unfit to use the same restrooms as everyone else” said Joshua Block, a senior staff attorney at the ACLU.

    On June 29, 2015, the U.S. Department of Justice filed a “statement of interest” in this case, arguing that Title IX requires school districts to permit transgender students to utilize the restroom that corresponds with their gender identity. “Allowing transgender students to use the restrooms consistent with their gender identity will help prevent stigma that results in bullying and harassment and will ensure that the District fosters a safe and supportive learning environment for all students, a result that is unquestionably in the public interest.”

    Notably, the U.S. Department of Justice, the U.S. Department of Education, and the Equal Employment Opportunity Commission are all in agreement that federal prohibitions on sex discrimination include transgender discrimination.

    Notwithstanding, on July 27, 2015, U.S. District Judge Robert G. Doumar ruled that the School Board’s policy does not violate Title IX because Title IX permits schools to maintain separate restrooms for different sexes. As a result, Judge Doumar dismissed this portion of Grimm’s lawsuit. “Prosecutors cannot use Title IX, a policy that bars a school from receiving federal funding if it discriminates based on sex, in their arguments” stated Judge Doumar. However, the Judge said that Grimm can continue to argue that the School Board’s policy violates the Equal Protection Clause of the 14th Amendment at trial. Further, although Judge Doumar did not rule on Grimm’s request for a preliminary injunction, which would allow Grimm to use the boys’ restroom while the case is pending, he noted that it is “highly unlikely” that he will issue this relief. In the coming months, the Judge is scheduled to issue a written opinion on these issues and set a trial date.

    The conversation surrounding restroom rights for transgender students extends far beyond the Virginia state lines. If Judge Doumar rules in favor of Grimm, it will be the first time a federal court finds that limiting a transgender student’s restroom use is discriminatory. All schools should pay special attention to the outcome of this case (and additional transgender cases) in order to ensure equal treatment of transgender students and employees in accordance with federal law. Moreover, school districts, colleges, and universities must stay up to date with ever-changing state laws in order to ensure full compliance with all relevant discrimination and harassment laws too.

    If you or your institution has any questions or concerns regarding employment or education related issues, please contact Hayley B. Dryer at hdryer@cullenanddykman.com or at (516) 357 – 3745.