Restrooms for Transgender Students

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Within the last couple of weeks, two decisions were issued that relate to transgender students’ use of facilities in public schools.  In Grimm v. Gloucester County School Board, on remand from the U.S. Supreme Court and the U. S. Court of Appeals for the Fourth Circuit, a federal district court judge denied the Gloucester County school board’s motion to dismiss the plaintiff’s amended complaint. The plaintiff, a transgender student named Gavin Grimm, alleges the school board’s policy prohibiting his use of the bathroom that corresponds to his gender identity, rather than his biological sex, is unconstitutional. Likewise, in Doe v. Boyertown Area School District, the U.S. Court of Appeals for the Third Circuit unanimously rejected an appeal from the denial of a preliminary injunction seeking to block the school district’s policy allowing students to use sex-segregated facilities corresponding to their gender identity.

The Supreme Court recently lost an opportunity to address important issues affecting transgender students.  On August 25, 2017, the Kenosha Unified School District filed a petition for certiorari after the Seventh Circuit affirmed a Wisconsin District Court’s decision granting a transgender student a preliminary injunction to use the bathroom that corresponds with his gender identity, rather than his biological sex.

The extension of civil rights protections to transgender and gender non-conforming individuals is rapidly evolving.  These issues are playing out in schools across the country, and a recent Seventh Circuit decision seems to suggest that transgender students will be afforded Title IX and Fourteenth Amendment protections.

In Whitaker v. Kenosha Unified School Dist. No. 1., No. 16-3522, 2017 WL 2331751 (7th Cir. 2017) the Seventh Circuit affirmed a Wisconsin District Court’s decision granting a transgender student a preliminary injunction to use the bathroom that corresponds with his gender identity, rather than his biological sex. 

In a joint letter issued February 22, 2017, the Departments of Education (ED) and Justice (DOJ) withdrew prior Title IX guidance from the Obama administration that required schools receiving federal funding to allow students to use sex-segregated facilities according to their gender identity, as opposed to their anatomical birth sex. To learn more, please visit…

On Friday, February 10, 2017, the Trump Administration announced that the United States will no longer challenge the injunction against enforcement of the joint Department of Justice and Department of Education guidance on treatment of transgender students that was issued last year. We expect further developments in the coming weeks and months, but for now…

On October 18, 2016, a federal magistrate judge in Illinois issued a recommendation that the Federal District Court deny a motion seeking to deny a transgender

student access to the girl’s locker room.  The School District’s 2013 policy gave transgender students access to whichever restroom facilities most aligned with their gender identity, but did not extend that access to locker rooms.  A transgender student, who identifies as female, filed an administrative complaint alleging Title IX violations with the U.S. Department of Education’s (ED) Office for Civil Rights resulting in a resolution agreement called the “Locker Room Agreement.”  This agreement entitled only this particular student to use the girl’s locker room and also included measures for all students to maintain their privacy.