Bathroom Wars Intensify

A federal district court in Virginia has held that Title IX does not require that schools allow a transgender student to use the bathroom that corresponds to the student’s gender identity.  In plain language, the student who was born a girl and now identifies as a boy was not allowed to use the boys’ bathroom. The court said that this was OK, and in the process, shot holes through the arguments of the Obama Administration.  We will discuss the Obama Administration’s involvement in this case tomorrow. For today, let’s just look at the bathroom issue.

The student had used the boys’ bathroom, with the permission of the principal, for about seven weeks in the fall of 2014.  The student reported that the other kids had no complaint about this, and there were no reported incidents.  However, school board members started to hear complaints from the start—complaints from both students and parents.  In December, 2014, the school board adopted a Resolution that called for bathrooms and locker rooms to be “limited to the corresponding biological genders.” The Resolution went on to say that “students with gender identity issues shall be provided an alternative appropriate facility.”

As a result of this school board action, the principal informed the student that he would no longer be allowed to use the boys’ bathroom.  He could use any of the three unisex, single-stall restrooms in the building, or the nurse’s office. Or he could go to the girls’ restroom.

The student reported that he was not welcome in the girls’ restroom, especially now that he was receiving treatment that lowered his voice and produced facial hair.  And he felt “stigmatized” by having to use the separate restrooms. So he sued, alleging that the resolution violated Title IX.

The judge pointed out, however that Title IX regulations expressly address the issue of bathrooms and lockers:

A recipient may provide 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 provided for students of the other sex.  34 CFR 106.33.

The judge noted that the student did not allege that the facilities he was allowed to use were unequal to the boys’ bathroom.  Therefore, he had no “sex discrimination” case.

It’s important to note that the school accommodated this student.  It did not simply order him to use the girls’ bathroom. It made other facilities available.   We are guessing that for most transgender students, such an accommodation will be acceptable.  But if your district encounters a student who seeks legal recourse in an effort to use the bathroom that corresponds to the student’s gender identity, this case will no doubt provide grist for the judicial mill.

The case is G.G. v. Gloucester County School Board, decided by the federal district court for the Eastern District of Virginia on September 17, 2015. We found it at 2015 WL 5560190.