Education Week - April 27, 2016 - 15

Ruling Brings Clarity on School Restroom Access
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fies as a boy and he has undergone
hormone therapy. The Gloucester
County school board voted unanimously to appeal the panel's decision
en banc to the full 4th Circuit, attorney David Corrigan said.
The ruling, the first by a federal
appellate court on the issue, affirms the Obama administration's
position on allowing transgender
students to use the restrooms and
locker rooms that correspond with
their gender identity, which it has
increasingly asserted in legal briefs
and civil rights agreements with
school districts in recent years.
"It's a case of the legal framework
really lagging behind our rapidly
changing social norms," said Francisco Négron, general counsel for the
National School Boards Association.
"We expect more of this to come."

Marching Orders
Suzanne Eckes, an education
law professor at the University of
Indiana at Bloomington, said the
ruling was part of a "general trend"
of state courts and civil rights panels
siding with transgender students on
questions of school facilities access.
If the ruling stands on appeal, and if
another appellate court also upholds
the Education Department's inter-

pretation of Title IX, it could set a
pattern for schools to follow, she said.
If not, the issue could be headed to
the U.S. Supreme Court.
"For now, the states in that circuit have certainly been given their
marching orders," Eckes said.
The 4th Circuit notably includes
North Carolina, which recently
became the first state to require
public schools to restrict restroom
access for transgender students. Republican Gov. Pat McCrory said he
will study the ruling, which could
leave his state's schools with the
difficult decision of either violating
the new state statute or violating
Title IX at the risk of losing millions
in federal funding.
The ruling cited precedents which
said that, in cases where there is
ambiguity in interpretation of a
federal law, courts should give deference to an agency's interpretation
of those laws.
Title IX prohibits sex discrimination but, under a regulation, schools
may have sex-segregated facilities.
The school district had interpreted
that regulation to refer to biological sex, while the federal Education
Department has defined it as applying to gender identity. Because both
could be viewed as valid interpretations of the law, the lower court was
obligated to side with the department, the 4th Circuit panel wrote.

"We conclude that the regulation is susceptible to more than
one plausible reading because it
permits both the board's reading-
determining maleness or femaleness with reference exclusively to
genitalia-and the department's
interpretation-determining maleness or femaleness with reference

"

It's a case of the legal
framework really
lagging behind our
rapidly changing
social norms."
FRANCISCO NÉGRON
National School Boards Association

to gender identity," the ruling says.
Many state and local policymakers
have disagreed with the Obama administration's position. In November,
the department's office for civil rights
found an Illinois district in violation
of the law because it would not grant
a transgender girl unrestricted access
to the girls' locker room. Under threat
of penalties, including a possible loss

of federal funding, the district agreed
to allow the student to use the girls'
locker room.
Because the administration's civil
rights guidance does not carry the
force of law, school law experts have
waited for a federal court ruling on
the issue to provide greater legal
clarity for schools. To this point,
transgender students have won
court victories under state anti-discrimination laws. In states without
such laws, schools have been uncertain about their obligations.

North Carolina Law
The ruling may come into play in
the ongoing controversy over pending state bills that restrict restroom
access for transgender students.
North Carolina is the only state to
have such a measure become law,
and the ACLU of North Carolina
has already challenged the measure
in court on behalf of plaintiffs at the
state's universities, who argue that
it violates Title IX.
South Dakota's governor vetoed
a similar measure earlier this
year, and Tennessee lawmakers
delayed a school facilities bill after
the state's attorney general said it
may put schools at risk of violating
federal law and losing millions in
federal funding. Several other legislatures have considered similar

proposals in recent years.
In an amicus brief filed in
Grimm's case in December, leaders
of six states, including North Carolina, argued against the Obama
administration's interpretation of
Title IX and said the Gloucester
County district has offered an adequate accommodation by giving
Grimm access to a single-stall restroom. Advocates for transgender
students and Grimm's attorneys
have said such accommodations
are discriminatory and contribute
to the stigmatization of students
who already face difficulties with
harassment and bullying at school.
While many districts have
pushed to maintain existing rules,
some have allowed transgender
students unrestricted access to
school facilities without prompting from legal challenges. After
students there campaigned, Los
Angeles Unified opened a genderneutral restroom at a high school
recently, a move met with protest
and celebration.
U.S. Circuit Judge Paul V. Niemeyer was the lone dissent on the
three-judge panel.
"This unprecedented holding overrules custom, culture, and the very
demands inherent in human nature
for privacy and safety, which the
separation of such facilities is designed to protect," he wrote. "More
particularly, it also misconstrues
the clear language of Title IX and
its regulations."

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