Eastern District of Virginia rules on school restroom policy regarding transgender students

In G.G. v. Gloucester County School Board, Civil No. 4:15cv54., the U.S. District Court for the Eastern District of Virginia considered whether a school board resolution requiring that the use of male or female restrooms and locker rooms be restricted to those of the corresponding biological gender constituted impermissible sex discrimination. The Court dismissed a claim by a transgender student that the policy violated Title IX.

A student identified in court papers as G.G. is biologically female but requested the ability to use male restrooms due to a male gender-identification. G.G. is a high school student in Gloucester County (VA) Public Schools. A psychologist diagnosed G.G. with gender dysphoria and recommended that G.G. dress as a male, use a male name, and act in accordance with the male gender identification. School officials allowed G.G. to use a private restroom in the nurse’s office and to complete physical education coursework through a home-based educational setting. G.G. claimed that use of a private restroom was stigmatizing and requested permission to use the male restroom. The school principal authorized use of the male restroom by G.G. in late October 2014 and G.G. used the male restrooms in the school for the next seven weeks triggering an outcry from the parents of other students.

The Gloucester County School Board proposed a resolution (“The Resolution”) for consideration at its November 11, 2014 meeting requiring that the use of male or female restrooms and locker rooms be restricted to those of the corresponding biological gender and further requiring that appropriate private facilities be provided for students with gender identity issues. The meeting allowed public comment on the matter and the majority of those speaking on the subject supported The Resolution citing concern over the privacy rights of other students and concerns over sexual assault in school restrooms and locker rooms. The School Board approved The Resolution at its December 9, 2014 meeting by a vote of 6-1, again with considerable public response in support of The Resolution. Three unisex single-stall restrooms were installed in G.G.’s school prior to the school board vote and on December 10, 2014, the school principal told G.G. that the student’s use of the male restroom was no longer authorized.

G.G. claimed that use of the three unisex restrooms was isolating and stigmatizing and, on June 11, 2015, filed suit against the Gloucester County School Board (“The School Board”) in the US District Court for the Eastern District of Virginia (Newport News Division) claiming that the policy established by The Resolution constituted gender discrimination in violation of the Fourteenth Amendment (“Equal Protection Clause”) and Title IX. The Department of Justice filed a Statement of Interest in support of G.G.’s allegation of a Title IX violation. The School Board filed a Motion to Dismiss and G.G. filed a Motion for Preliminary Injunction to allow the student to use the male restroom until a final judgment on the merits. Both motions were heard on July 27, 2015.

“Under Title IX, a prima facie case is established by a plaintiff showing (1) that [he or] she was excluded from participation in (or denied the benefits of, or subjected to discrimination in) an educational program; (2)that the program receives federal assistance; and (3) that the exclusion was on the basis of sex.” Manolov v. Borough of Manhattan Comm. Coll., 952 F. Supp. 2d 522, 532 (S.D.N.Y. 2013) (quoting Murray v. N.Y. Univ. Coll. Of Dentistry, No. 93 Civ. 8771, 1994 WL 533411 at *5 (S.D.N.Y. Sept. 29, 1994). Both parties supported their motions by citing to interpretations of Title VII of the Civil Rights Act of 1964, “upon which courts have routinely relied in determining the breadth of Title IX. See Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007).” The School Board argued that restricting bathroom usage to those corresponding with an individual’s biological sex is not a violation of Title IX because discrimination against transgender individuals is not included in sex discrimination. Johnston v. Univ. of Pittsburgh, 2015 U.S. Dist. LEXIS 41823 (W.D. Pa. Mar. 31, 2015).

On September 17, 2015, the Court issued its opinion on the parties’ motions. The Court dismissed Count II of G.G.’s claim under Title IX, ruling that Department of Education regulations bar the Title IX claim. Schools are allowed to “provide separate bathroom facilities based upon sex, so long as the bathrooms are comparable.” 34 C.F.R. § 106.33 (“Section 106.33”). The court determined that Section 106.33 was not arbitrary, capricious or manifestly contrary to the statutory exceptions within Title IX allowing separate living facilities for the sexes. Therefore, Section 106.33 is controlling. G.G. did not allege that the unisex single-stall restrooms and female restrooms were incomparable to the male restrooms and therefore failed to state a valid claim under Title IX.

A Preliminary Injunction requires plaintiffs to present admissible evidence to “demonstrate that (1)they are likely to succeed on the merits; (2) they will likely suffer irreparable harm absent an injunction; (3) the balance of hardships weighs in their favor; and (4) the injunction is in the public interest.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014). The court noted that G.G. failed to identify specific harms that would result in the continued use of female or unisex single-stall restrooms during the pendency of the litigation. By contrast, bodily privacy is a constitutional right Lee v. Downs, 641 F.2d 117, 119 (4th Cir. 1981), so the School Board policy was designed to protect the constitutional rights of other students. Therefore, the balance of hardships weighs in favor of the School Board. Furthermore, G.G. failed to offer evidence of irreparable harm from continued use of the female restrooms or unisex single-stall restrooms. The Motion for Preliminary Injunction was therefore denied.

As legal challenges are raised to school policies relating to gender identification issues, school systems may rely on Section 106.33 and the constitutional right to bodily privacy to support policies establishing comparable but separate restrooms, locker rooms, and living facilities for biological males and biological females regardless of gender identification