Transgender Students & Employees on Your Campus: What Are Their Rights?

This page will be used to update you on cases and guidance as they become available in this emerging area of School Law.

Seven Year Old Transgender Girl Planned to Testify Against TX Bathroom Bill

A 7-year-old transgender girl was all ready to testify at a Texas House State Affairs Committee Hearing this week. But as the session went on deep into the night, the girl fell asleep before her turn to speak came at 2 a.m.

According to the Texas Tribune, Libby Gonzalez fell asleep in her father’s arms while waiting for her turn to speak, so her parents took to the microphone for her, asking lawmakers to keep their child safe.

Click here for the full story from the Texas Tribune and to hear an audio of Libby’s planned testimony.

Changing Course, the Seventh Circuit Holds that Sexual Orientation Discrimination Can Give Rise to a Title Vii Employment Discrimination Claim

In the Legal Digest’s Transgender Guide published last year, we reported on a case out of the Seventh Circuit Court of Appeals, holding that Title VII does not apply to employment discrimination based on sexual orientation.  The case is Hively v. Ivy Tech Community College of Indiana and it involves claims by a part-time adjunct professor that she was denied full-time employment and promotions because of her sexual orientation.  In dismissing the lawsuit, the Seventh Circuit cited the 1979 Fifth Circuit opinion Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), which held that a discharge for homosexuality is not prohibited by Title VII.  The Fifth Circuit has jurisdiction over Texas.

The Seventh Circuit, however, recently reheard the Hively appeal en banc, meaning the entire Seventh Circuit panel of judges considered the case.  By a vote of 8 to 3, the appellate court changed course, this time holding that the suit had stated a viable claim for relief under Title VII.  The Seventh Circuit observed that prior case law did not recognize Title VII liability for discrimination based on sexual orientation and that, while Congress has considered adding the words “sexual orientation” to the list of prohibited characteristics, it never did so.  Yet, according to the appeals court, the “goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language that already is in the statute:  no sex discrimination.”  Thus, the fact that Congress has not explicitly included sexual orientation as a prohibited characteristic does not preclude such a discrimination claim.  In fact, the Supreme Court has recognized sex discrimination in many forms, including sexual harassment, same-sex sexual harassment, actuarial assumptions about one’s longevity, and discrimination based on a person’s failure to conform to a certain set of gender stereotypes.

Hively claimed that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her.  According to the Seventh Circuit, these facts state a viable Title VII claim.  The appeals court stated:  “Any discomfort, disapproval, or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.  That means it falls within Title VII’s prohibition against sex discrimination, if it affects employment in one of the specified ways.”

Hively also claimed that she suffered sex discrimination due to her association with others of the same sexual orientation.  Looking to prior Title VII cases recognizing such associational discrimination claims based on race, the court of appeals observed that “to the extent that the statute prohibits discrimination on the basis of the race of someone with whom the plaintiff associates, it also prohibits discrimination on the basis of the national origin, or the color, or the religion, or (as relevant here) the sex of the associate.  No matter which category is involved, the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.”  For these reasons, the Seventh Circuit reversed the dismissal of Hively’s suit and returned the case to the trial court for further proceedings.

The Seventh Circuit does not have jurisdiction over Texas.  As of now, Texas precedent out of the Fifth Circuit Court of Appeals does not recognize Title VII claims based upon sexual orientation.  However, the law in this area is ever evolving.  Guidance from the Equal Employment Opportunity Commission (EEOC) cautions that employers may run afoul of Title VII if they discriminate based on sexual orientation.  Therefore, simply because the Fifth Circuit has not yet changed the law in this area, does not mean that employers will be immune from an EEOC enforcement action or a lawsuit challenging an employment decision made on the basis of sexual orientation.  Employers should consult with legal counsel if these issues arise to avoid costly legal action and unfavorable public attention.

House Committee to take up new transgender bathroom bill this week

In a detour from discussion on the controversial “bathroom bill”, Senate Bill 6, the Texas House will discuss a new bill this week designed to prevent school districts from making local policies regarding gender identification and bathroom usage.

According to the Texas Tribune, House Bill 2899, authored by Rep Ron Simmons, R-Carrollton, would effectively strip power from local municipalities and school districts to make such policies. Instead it advocates for statewide regulation of transgender bathroom policies. If successful, the bill would nullify existing anti-discrimination ordinances already in place in some cities and towns that allow transgender people access to bathrooms based on gender identity.

Simmons was quoted in the Tribune as saying, “We believe those issues should be handled at the state level and if there is an issue that exists in the state that people need to come to the Capitol, they need to convince 76 representatives, 16 senators, and one governor of what the policy needs to be. Until then, it’s my opinion, we don’t need to change.”

Read the full story from the Texas Tribune

Photo by Ted Eytan via Flickr

Another “Bathroom Bill” is on the Table in Texas this Legislative Session

In March, the Texas Senate passed Senate Bill 6 which would require people to use bathrooms in schools, universities, and other governmental buildings that aligned with the gender on their birth certificate.  The bill passed after hours of debate.  Here are the highlights with respect to public schools:

  • The stated purpose of SB 6 is “to provide for the general diffusion of knowledge and an efficient system of public schools, potentially harmful and distracting environments should be barred.”
  • “Bathrooms” and “changing facilities” are defined as a place “where a person may be in a state of undress, including a restroom, locker room, changing room, or shower.”
  • The bill applies to public bathrooms only.
  • The bill states: “A school district or open-enrollment charter school shall require that each multiple-occupancy bathroom or changing facility accessible to students and located in a school or school facility be designated for and used only by persons based on the person’s biological sex.”
  • “Biological sex” is defined as the “physical condition of being male or female, which is stated on a person’s birth certificate.”
  • Accommodations are allowed, “including a single-occupancy bathroom or changing facility or the controlled use of a faculty bathroom or changing facility, on request due to special circumstances.” However, an accommodation is prohibited if it “allows a person to use a multiple-occupancy bathroom or changing facility accessible to students that is designated for the biological sex opposite to the person’s biological sex.”

Sponsored by Republican Senator Lois Kolkorst, the bill will next be considered by the state’s House of Representatives.  Read the text of Senate Bill 6.

 

Pennsylvania Judge Issues Injunction in Transgender Student Case

Three transgender high school students in suburban Pittsburgh can use bathrooms that match their gender identity as their federal case against their school district proceeds in court, a judge ruled on Monday.

U.S. District Court Judge Mark Hornak ordered the Pine-Richland School District to stop enforcing a rule adopted in September for students to use facilities corresponding to their biological sex or unisex facilities, court documents showed.

The ruling comes five days after President Donald Trump’s administration revoked landmark guidance to public schools allowing transgender students to use bathrooms of their choice, reversing a signature initiative of former Democratic President Barack Obama…

Read the rest of the article by Brendan O’Brien at Reuters

Departments of Education and Justice Withdraw Transgender Guidance Letters

The Trump administration is rescinding protections for transgender students in public schools.

The move by the Justice and Education departments reverses guidance the Obama administration publicized in May 2016, which said a federal law known as Title IX protects the right of transgender students to use restrooms and locker rooms that match their gender identities.

But on Wednesday, the two federal departments said the Obama documents do not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process. This interpretation has given rise to significant litigation regarding school restrooms and locker rooms.”

Read the rest of the article by Rebecca Hersher and Carrie Johnson at NPR.org.

 

Photo by Ted Eytan via Flickr

Injunction Banning Transgender Students from Using Bathrooms Based on Gender Identity Will Likely Remain in Place

The New York Times reports that the Drumpf administration will not pursue action against the injunction that kept in place a ban on transgenders’ use of bathrooms that correspond with their gender identity.  The injunction was issued last August, after suit was brought under Title IX of the Education Amendments of 1972.  The Obama administration filed an appeal to challenge the injunction.  However, now it appears that the injunction will remain in place since the new administration announced that it will no longer pursue the appeal.

 

Photo by Ted Eytan via Flickr

“Bathroom Bill” Unveiled Today Targets School Bathroom Facilities

On January 5, 2016, Senator Dan Patrick, unveiled a bill relating to regulations and policies for entering or using a bathroom or changing facility.  The bill authorizes civil penalties for violations of the law and increases criminal penalties for criminal acts occurring on the premises of a bathroom or changing facility.  Here are the highlights:

  • The bill defines a “bathroom or changing facility” as a facility where a person may be in a state of undress, including a restroom, locker room, changing room, or shower room.
  • The bill would prohibit a political subdivision from adopting or enforcing an order, ordinance, or other measure that relates to the designation or use of a private entity’s bathroom or changing facility or that requires or prohibits the entity from adopting a policy on the designation or use of the entity’s bathroom or changing facility.
  • In awarding a contract for the purchase of goods or services, a political subdivision may not consider whether a private entity competing for the contract has adopted a policy relating to the designation or use of the entity’s bathroom or changing facility.
  • School districts and open-enrollment charter schools will have to adopt a policy requiring each multiple-occupancy bathroom or changing facility accessible to students that is located in a school or school facility to be designated for and used only by persons based on the person’s biological sex. The bill defines “biological sex” as “the physical condition of being male or female, which is stated on a person’s birth certificate.”
  • The bill does not prohibit a school district or open-enrollment charter school from providing an accommodation, including a single-occupancy bathroom or changing facility or the controlled use of a faculty bathroom or changing facility, on request due to special circumstances. However, the school district or open-enrollment charter school may not provide an accommodation that allows a person to use a multiple-occupancy bathroom or changing facility accessible to students that is designated for the biological sex opposite to the person’s biological sex.  Exceptions apply to persons entering facilities for custodial, maintenance, or medical purposes, or to assist those with special needs, as long as the person assisting is authorized to do so.
  • A private entity that leases or contracts to use a building owned or leased by the state or a political subdivision is not subject to a policy developed under the law, and it may not require or prohibit a private entity that leases or contracts to use a building owned or leased by the state or a political subdivision from adopting a policy on the designation or use of bathroom or changing facilities located in the building. Exceptions apply to persons entering facilities for custodial, maintenance, or medical purposes or to assist those with special needs.  It also does not apply to children under the age of eight.

The United States Supreme Court Will Take Up Transgender Student Case

gg v gloucester countyThe United States Supreme Court has decided to take up the high-profile Virginia transgender student case, G.G. v. Gloucester Cnty. Sch. Bd., No 15-2056, in which a transgender male sued to allow access to the boys’ restroom in accordance with his gender identity.  The School Board of Gloucester County, Virginia barred the 17-year-old from using the boys’ restroom and instead required students to use restrooms consistent with their biological gender or, alternatively, a private single bathroom accommodation.  This suit involves a challenge to the U.S. Department of Education guidance on Title IX and its regulations stating that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity.”

The Fourth Circuit Court of Appeals initially ruled that the trial court had to give deference to the Department of Education’s guidance.  The trial court then ordered the school system to allow the student to use the boys’ restroom.  An injunction was issued barring the school board from enforcing its bathroom policy.  The school board appealed and asked for a stay of the injunction, but the stay was denied.

Then, on July 14, 2016, the board took their request to the United States Supreme Court, asking the Court to block the injunction pending appeal.  The Supreme Court sided with the board and blocked the injunction and allowed the board to prevent use of the boys’ bathroom while it decided whether to take up the case.

The Supreme Court, indeed, will take up the case.  The Court will consider whether deference should extend to the Department of Education’s guidance and whether the Department of Education’s interpretation of Title IX should be given effect, so that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity.”

District Required to Allow Transgender Student to Use Bathroom Based Upon Gender Identity

Bd. Of Educ. Of the Highland Local Sch. Dist. v. United States Department of Education, Dkt. No. 2:16-CV-524 (S.D. Ohio Sept. 26, 2016).

Facts:  Jane Doe, an eleven-year-old transgender girl, sought to use the girls’ restroom at Highland Elementary School in Ohio.  The school would not permit her to do so.  After an investigation, the Department of Education Office of Civil Rights (OCR) found that the district’s policy discriminated against the student on the basis of her sex in violation of Title IX of the Education Amendments of 1972.  The district filed suit seeking an order enjoining the Department of Education and the Department of Justice from enforcing Title IX against the district.  The student, in turn, sought an order enjoining the district’s transgender bathroom policy and allowing her to use the bathroom based upon her gender identity.

Ruling:  The Ohio federal district court ruled in favor of the student, entering an order that required the district to allow her to use the girls’ bathroom.  To prevail on a claim under Title IX, plaintiffs had to show that (1) the student was excluded from participation in an educational program because of her sex, (2) the educational institution received federal financial assistance, and (3) the discrimination harmed the student.  The trial court rejected the school district’s contention that discrimination based upon “sex” under Title IX, implied only one’s “biological sex” and not gender identity. The student claimed that she was stigmatized and isolated, forced to use a separate bathroom, not treated like a girl, and experienced emotional difficulties.  The court concluded that she was likely to succeed on a Title IX claim and, therefore, was entitled to a preliminary injunction under Title IX.

The trial court also determined that plaintiffs were likely to prevail on an Equal Protection claim.  The trial court applied the highest level of scrutiny to plaintiffs’ claims, which required the district to show that its policy was necessary to achieve a compelling governmental interest, and that the policy was the least restrictive means of achieving that interest.  The school district advanced concerns regarding the dignity and privacy of other students, and raised safety and lewdness issues.  The district also argued that allowing a transgender student to use of bathrooms based on gender identity would interfere with the other students’ zone of privacy.  The trial court rejected each of those arguments and found that there was insufficient evidence to support the district’s contentions.  Thus, the trial court granted the student’s request for a preliminary injunction and allowed her to use district bathrooms based upon her gender identity.  This case is on appeal.