Fourth Circuit Holds That Title IX Protects Transgender Student's Right To Use Men's Restroom Consistent With The Student's Gender Identity

Seyfarth Synopsis: The U.S. Court of Appeals for the Fourth Circuit holds that Title IX protects a transgender student's right to use the restroom that aligns with the student's gender identity.

The Fourth Circuit has become the first federal circuit to weigh in on bathroom access for transgender students. In G.G. v. Gloucester County School Board, Case No. 15-2056, the Fourth Circuit held that deference should be given to U.S. Department of Education ("DOE") guidance which directs that schools must treat transgender students consistent with their gender identity if schools designate separate bathroom facilities on the basis of "sex" as authorized by Title IX regulation at 34 C.F.R. § 106.33. Since Title IX applies to educational institutions generally, the impact of G.G. applies not only to public schools but also to colleges, universities, and private schools that are recipients of federal financial assistance.

This ruling thus places federal jurisprudence in direct opposition to the bathroom bills that have passed or been proposed in some states.

A link to the Fourth Circuit's decision can be found here.

Case Background

G.G., a high school junior, is a transgender boy. His sex assigned at birth is female, but his gender identity is male. G.G. has been diagnosed with gender dysphoria, a medical condition "characterized by clinically significant distress caused by an incongruence between a person's gender identity and the person's birth-assigned sex." G.G. has undergone hormone therapy and legally changed his name to a traditionally male name. Consistent with predominating medical standards of care for transgender minors, G.G. has not undergone sex reassignment surgery.

During G.G.'s sophomore year, he informed the administration of Gloucester High School that he was transgender. He was subsequently permitted to use the men's restroom. He used the restroom without incident for almost two months. After interest and input from some community members, the Gloucester County School Board revised its policy to limit the use of restroom and locker room facilities to "the corresponding biological genders," and supplied a gender-neutral restroom for transgender students.

G.G. sued for gender discrimination under Title IX and the Equal Protection Clause and requested a preliminary injunction allowing him to use the bathroom aligning with his gender identity. G.G. alleged that being required to use the women's restroom caused negative reactions from...