Wednesday, August 3, 2016, the U.S. Supreme Court “temporarily” weighed in on a transgender student’s right to use the restroom which corresponds to his gender identity. The Order is a result of Gloucester County School Board v. G.G., a Virginia case where a transgender student sued to gain access to the boys’ bathroom.
G.G. is a high school student at Gloucester High School in Virginia. G.G. approached his Administrators requesting to use the bathroom which correlated to his gender identity.
For some time, the Administration permitted G.G. to use the boys’ bathroom. After the fact, the Gloucester County School Board adopted a policy that required students to use the bathrooms and locker rooms for their corresponding biological gender. The policy permitted students with gender identity issues to use private bathrooms.
G.G. sued the School Board. The United States Court of Appeals for the Fourth Circuit ruled the policy as unlawful. The case was remanded and a trial judge entered an Order requiring the School District to allow G.G. to use the boys’ bathroom. The School Board filed a Motion with the Fourth Circuit requesting that the matter be stayed pending an appeal.
On July 12, 2016, the Fourth Circuit denied the Motion for Stay. The School Board then proceeded to file an Emergency Application with the U.S. Supreme Court and asked the Justices to keep the status quo in place, i.e., allow the school Administration to continue to bar G.G. from the boys’ bathroom.
In a 5-3 vote, the U.S. Supreme Court granted the relief requested and put a hold on G.G.’s case. Justice Breyer concurred with 4 Justices as a “courtesy” indicating that he was doing so because the Court is in recess and putting the ruling on hold “will preserve the status quo”.
Many are opining that this action by the Court is a sign that they are prepared to take on the issue of gender identity and bathroom usage in its next term.
So What Does This All Mean?
The Supreme Court has not weighed in on the substantive issue of transgender students and bathroom/locker room usage. The Supreme Court ruling simply means that until the G.G. case is finally decided, he may not use the boys’ bathroom. This does not change the Fourth Circuit’s current Opinion, nor does it change the guidance that was issued in May to school districts from the Obama Administration through the U.S. Dept. of Education and the Dept. of Justice.
Bottom Line for Schools
While it seems that we may have a Court decision concerning transgender students’ bathroom and locker room usage in the near future, until that time comes, the Departments of Education and Justice have sent a clear message to districts regarding their interpretation of Title IX.
Until a ruling is received concerning the substantive issues raised in the G.G. case, it is best to contact your solicitor when facing questions regarding transgender students so that you may avoid allegations of discrimination.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. It is meant to be informational and does not constitute legal advice. John E. Freund, III, is our editor.
