Tag Archives: Transgender Students

7th Circuit Rules in Favor of Transgender Student

The 7th Circuit has ruled that a school in Wisconsin must permit a transgender boy to use the boys’ bathroom. The court held that offering the student the use of a private, gender neutral bathroom was not adequate.  The court held that the school’s policy about bathroom use amounted to discrimination based on sex in violation of Title IX, and a denial of equal protection in violation of the 14th Amendment to the U.S. Constitution.

The arguments made by both sides in this case are, by now, very familiar.  The student claims that he is being stigmatized, singled out for no good reason, discriminated against.  The school cites the desire for privacy for other students as they use the bathroom.

Different courts are going to come to different conclusions on these issues until the Supreme Court settles the matter. This might be the case that goes to the Supreme Court. The 7th Circuit seems to tee it up nicely for SCOTUS, relying heavily on the SCOTUS decision from 1989, Price Waterhouse v. Hopkins. That’s the case where the Court held that discrimination based on “gender non-conformity” was a form of sex discrimination.  Here’s a quote from the 7th Circuit:

A policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.

The court dismissed the school’s argument about the privacy rights of its other 22,160 students:

What the record demonstrates here is that the School District’s privacy argument is based upon sheer conjecture and abstraction.  For nearly six months Ash used the boys’ bathroom while at school and school sponsored-events without incident or complaint from another student.

And the court drew a distinction between concerns of the adults vs. those of the students:

In fact, it was only when a teacher witnessed Ash washing his hands in the restroom that his bathroom usage once more became an issue in the School District’s eyes.

…neither party has offered any evidence or even alleged that the School District has received any complaints from other students.  (Emphasis in original).

This is the first transgender case I have read that looks beyond the law, into biology.  Look at this:

Further, it is unclear that the sex marker on a birth certificate can even be used as a true proxy for an individual’s biological sex.  The marker does not take into account an individual’s chromosomal makeup, which is also a key component of one’s biological sex.  Therefore, one’s birth certificate could reflect a male sex, while the individual’s chromosomal makeup reflects another.

The decision is not binding here in Texas, but will be important in any litigation Texas schools get involved in.  And, of course, we await further developments on this from the legislature. Stay tuned!

The case of Whitaker v. Kenosha USD was decided by the 7th Circuit on May 30, 2017.  It can be found at 2017 WL 2331751.


 File this one under: TRANSGENDER STUDENTS

SCOTUS punts on transgender case. Now what????

Last Monday the Supreme Court punted the transgender student case back to the 4th Circuit.  The official legalese for this is that SCOTUS “vacated” the decision of the 4th Circuit and sent it back to that court for further consideration.  Instantly, the speculation began as to the motivation behind this.

I think it’s pretty simple.  The Trump Administration has taken a wrecking ball to the foundation of the 4th Circuit’s decision. So the Supreme Court wants that court to take another look at this issue.  Let’s review how we got here.

The 4th Circuit ruled that a school district in Virginia had to permit Gavin Grimm to use the boys’ bathroom, despite school policy that limited transgender students to the bathroom corresponding to birth sex, or a private, gender neutral facility.  In other words, Gavin, who was born female, would have to use the girls’ room or a private, neutral facility.  Gavin, a transgender male, was not OK with this.  He sued, claiming that the policy violated Title IX.

The 4th Circuit agreed with Gavin, but the primary reason for that was the court’s deference to the interpretation of the law by the Department of Education and Department of Justice. The court did not explicitly rule on what it thinks Title IX requires. Instead, it cited the legal principle that the agency that enforces the law is entitled to a certain level of deference.  Thus we might paraphrase the court’s decision as “we’re not sure what Title IX requires, but this is what the DOE and DOJ  say it means, and we don’t think they are way off base, so we’ll defer to their interpretation.”

Then the case went to SCOTUS.  Meanwhile, we had a little election.   The new Trump DOE and DOJ withdrew the guidance from the Obama Administration, thus destroying the foundation of the 4th Circuit’s decision.

So SCOTUS has sent the case back to the 4th Circuit, which will now have to tell us what it thinks Title IX and the U.S. Constitution require when it comes to bathroom usage by transgender students.  This is not surprising, nor does it suggest how SCOTUS will eventually rule on this matter.  Whether this case or another one, the issue of transgender use of bathrooms seems inevitably headed for a SCOTUS decision.

Stay tuned, folks.


 File this one under: TRANSGENDER STUDENTS

Tomorrow: It’s Toolbox Tuesday!! We’ll talk about the “45-day” rule.

Having trouble keeping up with all the transgender developments?

I attended the fall seminar sponsored by the national Council of School Attorneys a couple of weeks ago in Portland, Oregon.  As has been the case for the past couple of years, litigation over transgender students was issue number one.

The National Schools Boards Association is doing a great job of keeping up with all of this and summarizing all of the developments.

Information compiled by NSBA shows the following as of October 25th:

*some litigation activity in 18 states;

*23 separate legal cases at various stages;

*13 of those cases are in favor of the transgender student’s use of facilities that match gender identify; ten are opposed.

The case of G.G. v. Gloucester County School Board remains the only case decided by a Court of Appeals. That court (4th Circuit) ruled in favor of the transgender student, based on deference to the interpretation of the law by the Departments of Education and Justice.  Now we have learned that this case will be heard by the Supreme Court.

Developments continue fast and furious.  The lawyers at Walsh Gallegos are all members of the Council of School Attorneys (COSA), with full access to the information and resources at NSBA.  If you want to know more, contact any of the lawyers in the firm.


File this one under: TRANSGENDER STUDENTS


Remember “potty parity”?  My recollection is that this phrase entered the general lexicon after a George Strait concert at the Astrodome.  The audience was overwhelmingly female, and the Dome simply lacked the capacity to handle that kind of crowd.  Eighth Wonder of the World, indeed!

Thus the cry for “potty parity” which did not mean that there would be an equal number of bathrooms. It meant there needed to be more capacity for the women, since they took longer—and we won’t get into the reasons for that.

Bathroom wars continue, but they are more complicated in the Bruce/Caitlyn Jenner era.  Moreover, they reach right down into your school district.

So we think it’s important for you to know that the U.S. Department of Justice has filed a “statement of interest” in a case involving a transgender male student who wants to use the regular boys’ bathroom.  The suit was originally filed by the ACLU against the Gloucester County School Board in Virginia.  According to news reports, the district’s policy includes extra privacy measures in all restrooms, and permission for any student to use any single-stall restrooms the district has. However, the policy also limits students to either the single-stall bathroom or the bathroom that corresponds to the student’s biological gender. In other words, if I’m born a girl, but have a male gender identity, I can use the girls’ room or the single-stall bathroom—but I cannot go to the boys’ room.

That’s what plaintiff Gavin Grimm is complaining about, and now the federal government has taken his side.