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November 01, 2017

Supreme Court Transgender Case


The Supreme Court may finally resolve this year whether federal laws that prohibit sex discrimination protect transgender people. G.G., a Virginia high school student, was assigned female at birth but identifies as male. He legally changed his name, has facial hair, a deep voice and other male secondary sex characteristics, and lives as male. G. uses the men's' restroom in all public venues, like restaurants, libraries, and shopping centers. 

G. and his mother met with the school at the beginning of his sophomore year to explain his transition and that he would be attending school as a male student. At first, G. chose to use a restroom in the nurse's office, but the location was inconvenient and using a separate restroom singled him out as different from his male peers. G. started using the boys' restrooms with the principal's permission and had no problems with his fellow students. 

Some adults in the community were upset when they learned a transgender boy was using the boys' restroom at school and petitioned the Gloucester County School Board to ban G. from using the boys' restrooms. The School Board eventually issued a policy prohibiting school administrators in the county from allowing transgender students to use facilities consistent with their gender identity. The policy does not require G. to use the girls' restrooms. Instead, schools are to provide alternative separate facilities for transgender students. 

G. continued using the restroom in the nurse's office but the public debate about his gender identity and which restrooms he is allowed to use has been humiliating. G. has testified that being forced to use separate restrooms sets him apart from his peers and serves as a daily reminder that the school views him as different. Because of this stigma and exclusion, he has suffered emotional and physical harm. G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 716-17 (4th Cir.).)

Title IX of the Education Amendments Act of 1972 protects students from "being excluded from participation in" or "denied the benefits of" any educational program or activity "on the basis of sex" (20 U.S.C. § 1681(a). Title IX's regulations permit schools to maintain separate toilet, locker room and shower facilities on the basis of sex, but the facilities provided for students of one sex must be comparable to the facilities provided for students of the other sex (34 C.F.R. § 106.33). The U.S. Department of Education enforces Title IX and issued an opinion letter, declaring that the school must treat transgender students like G. consistent with their gender identity. The opinion letter was consistent with other DOE guidance interpreting that Title IX protects transgender students from discrimination.

The U.S. Court of Appeals for the Fourth Circuit held that the regulation about sex-segregated restrooms was ambiguous about how schools should deal with transgender students. The Fourth Circuit gave controlling weight to DOE's interpretation under Auer v. Robbins, 519 U.S. 452 (1997). (G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 727 (4th Cir. 2016).) On remand, the district court granted G. a preliminary injunction allowing him to use the boys' restrooms (G.G. v. Gloucester Cty. Sch. Bd., 2016 WL 3581852, at *1 (E.D. Va. June 23, 2016)).

The Supreme Court stayed the injunction and granted the certiorari petition on two issues:

  • Whether courts should defer to an unpublished letter from an administrative agency, like the Department of Education's opinion letter in this case, issued while the case is pending before the court.
  • Whether the DOE's interpretatin of Title IX and it's regulation should be given effect?  (Gloucester Cty. Sch. Bd. v. G.G. ex rel. Grimm, 137 S. Ct. 369 (2016).)

Under the Court's original briefing schedule, the School Board's merits brief was due mid-December, 2016 and G.'s brief was due mid-January, 2017, before the inauguration of President-Elect Trump. The Court extended the briefing schedule and now the School Board's brief is due January 3, 2017 and G.'s brief is due February 23, 2017. The new administration won't be able to write and file a brief supporting the School Board, but the government could reverse its position supporting G. before G.'s brief is due. In addition, the case will likely be set for oral argument during the Court's March or April sitting, by which time the Court could have its ninth justice, replacing the late Justice Antonin Scalia.

The Court's decision in this case may affect more than which restroom G. is entitled to use at his high school. Title IX's prohibition of sex discrimination in education is similar to the prohibition of sex discrimination under other federal laws, including Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment (42 U.S.C. § 2000e et seq.). The U.S. Equal Employment Opportunity Commission (which enforces Title VII) has interpreted Title VII to mean that sex discrimination includes discrimination against transgender individuals and on the basis of gender identity or gender expression since at least 2012. Other federal agencies have issued guidance and regulations similarly interpreting sex discrimination to cover discrimination on the basis of gender identity or expression, including the Department of Justice, the Department of Housing and Urban Development, the Occupational Safety and Health Administration, and the Office of Personnel Management.

If the new administration changes position on DOE's interpretation of Title IX, the Court could remand the case back to the lower courts for reconsideration. Or, with or without deferring to DOE's interpretation, the Court could decide this question in a way that clarifies the law for all transgender people. The First, Sixth, Ninth, and Eleventh Circuits have all recognized that discrimination against a transgender individual based on that person's transgender status is sex discrimination under the federal civil rights statutes and the Equal Protection Clause of the Constitution (Glenn v. Brumby, 663 F.3d 1312, 1316–19 (11th Cir. 2011); Smith v. City of Salem, Ohio, 378 F.3d 566, 573–75 (6th Cir. 2004); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213, 215–16 (1st Cir. 2000); and Schwenk v. Hartford, 204 F.3d 1187, 1201–03 (9th Cir. 2000)). A decision in this case is unlikely before late Spring, 2017, but this is a case to watch.

1 Anna M. Pohl is a Senior Legal Editor at Thomson Reuters, where she writes about labor and employment issues for Practical Law's Labor and Employment Service.


Liaison, Section of Labor and Employment