Earlier this week, the U.S. Court of Appeals for the Fourth Circuit held that a Virginia school board’s policy barring a transgender boy from using the boy’s restrooms at his school violates Title IX’s ban on discrimination on the basis of sex. The decision overturned the lower court’s dismissal of the student’s Title IX claim and makes clear that trans students who are barred from using the right restroom are protected by Title IX. The school’s policy of allowing the student to use the boy’s bathroom was in place for seven weeks without incident prior to being overturned by the local school board. The Fourth Circuit’s decision against the school board has major implications for the transgender population, not just under Title IX but also for other statutes protecting against sex discrimination in the workplace and public accommodations.
Title IX of the Education Amendments of 1972 prohibits sex-based discrimination and retaliation in education. Title IX applies to education programs or activities that receive federal financial assistance, and protects students and school employees at educational institutions at all levels, from kindergarten through postgraduate schools. Increasingly, courts and federal agencies have determined that the protections of Title IX extend beyond traditional understandings of sex discrimination and sex stereotyping to include discrimination based on an individual’s transgender status. This decision by the Fourth Circuit marks the first federal appeals court to hold that transgender people are protected under federal law from discrimination in education.
In G.G. v. Gloucester County School Board, the majority opinion written by Judge Henry Floyd held that the U.S. Department of Education’s interpretation of its own regulations is entitled to deference. The Department of Education interpretation concluded that when schools separate students on the basis of gender, generally schools must treat transgender students consistent with their gender identity. The lower court had dismissed G.G.’s claims, finding that the Department of Education’s interpretation was entitled to no deference and Title IX did not protect against gender identity discrimination.