Two ongoing cases should substantially shape the law for transgender access to public restrooms. The first (Highland) is currently in the Federal District Court for the Southern District of Ohio and involves an 11-year old transgender student who was denied access to the school restroom corresponding with her female gender identity. Bd. of Educ. v. U.S. Dep’t of Educ., S.D.Ohio No. 2:16-CV-524, 2016 U.S. Dist. LEXIS 131474, at *1 (Sep. 26, 2016). The second (Gloucester) involves a transgender high school student in Virginia impacted by a similar policy and has been granted certiorari by the U.S. Supreme Court in October. Gloucester Cnty. Sch. Bd. v. G.G., ___U.S.___, 137 S.Ct. 369 (2016)
In September, the court in Highland issued a preliminary injunction preventing the school from excluding the student from sex-segregated restrooms. In December, the Sixth Circuit denied the school’s motion to stay this injunction. Both courts found that the student had a substantial likelihood of success on the merits.
The claims in both cases are based primarily on two theories of Title IX discrimination: 1) the policy unlawfully discriminates on the basis of transgender status; 2) the policy unlawfully discriminates because it is rooted in the sex stereotype that student gender expression, including use of gender-specific facilities, should comport with biological sex at birth.
In Gloucester, the student was unsuccessful at the District Court, but the U.S. Fourth Circuit Court of Appeals found the school’s policy violated Title IX. The appellate decision was influenced by the Department of Education’s administrative opinion letter in which it provides a broad interpretation of Title IX sex discrimination to prohibit such restroom policies.
The Supreme Court accepted the case and agreed to weigh in on two issues: 1) what deference courts must offer informal administrative interpretations such as that of the Department of Education on transgender restroom access; and 2) if the Gloucester County School Board policy violates Title IX.
In addition to the Title IX discrimination theories, the student in Highland argues that the policy is unconstitutional under the Equal Protection Clause of the 14th Amendment. Generally, laws must be rationally related to a legitimate government interest under the Equal Protection Clause; however, elevated scrutiny applies in the case of laws that discriminate on the basis of sex (“intermediate scrutiny”). Intermediate scrutiny requires the state prove that the classification is substantially related to an important government interest.
In granting the student’s injunction, the Court made four key determinations: 1) discrimination on the basis of a student’s transgender status is sex discrimination such to require intermediate scrutiny; 2) transgender status independently qualifies as a “quasi-suspect class” and therefore classification on that basis must meet intermediate scrutiny; 3) the policy is unconstitutional, because the privacy interests offered as justification do not satisfy intermediate scrutiny; and 4) even under the lowest scrutiny (“the rational basis test”), the school district policy to exclude transgender students from sex-segregated restrooms is unconstitutional.
Both cases have clear implications for school district policies on gender-specific facilities for transgender and gender nonconforming students, but the shockwaves will likely be significant in the employment context as well. This is because decisions interpreting discrimination under Title IX and Title VII of the Civil Rights Act of 1964 are often cited as authority under both provisions.
Given the opinions in Highland, there is significant liability potential for Ohio schools and employers who exclude transgender individuals from restrooms corresponding with their gender identity. The U.S. Supreme Court’s opinion in Gloucester is expected in the coming year and should further clarify the applicability of Title IX in this context.
FHKAD will continue to monitor this litigation and provide updates regarding any developments. If you have any questions, please contact any FHKAD attorney at (614) 221-1216.