Transgender Bathroom Lawsuit Dismissed by Federal District Court

Schools across the country are struggling with the best legal and practical

approaches to deal with the needs of transgendered students. One of the

most emotionally-charged issues is which bathroom a transgendered student

should use. A federal district court in Virginia issued a decision last week in

a case in which a transgendered student sued the high school over the

student’s desire to use a specific bathroom. Although this case is not

binding on Nebraska schools, it provides some interesting insights into how

courts are addressing this issue.

The case, G.G. v. Gloucester Cnty. Sch. Bd., No. 15-54 (E.D.Va. Sept. 17,

2015), was filed by the ACLU on behalf of a student who is biologically

female but who identifies as male. The student and mother informed the

school that the student would like to use the boys’ bathrooms at the school.

With permission from school administrators, the student used the boys’

restroom for almost two months. After receiving complaints from some

parents and residents of Gloucester County, the school board adopted the

new policy which limits the use of boys’ and girls’ bathrooms to students of

the “corresponding biological gender.” Under the policy, trangender

students who do not wish to use the bathroom designated for their biological

sex are permitted to use separate unisex bathrooms. The ACLU filed suit

against the school arguing that the school board’s policy excluding the

student from using the boys’ restroom based on gender identity amounted

to sex discrimination in violation of Title IX.

The court dismissed the student’s Title IX claim. The court relied on a US

Department of Education regulation that expressly “allows schools to provide

separate bathroom facilities based upon sex, so long as the bathrooms are

comparable.” The court reasoned that, since schools are allowed to maintain

separate bathrooms based on sex, the school’s policy “did not run afoul of

Title IX by limiting G.G. to the bathrooms assigned to his birth sex.”

Significantly, the court specifically rejected the ACLU’s argument that the

term “sex” could only mean gender identity. Instead, the court ruled that

“under any fair reading, sex in Section 106.33 clearly includes biological


The ACLU and the U.S. Department of Justice argued that the school had to

provide the student with access to the boys’ bathroom based on a “Dear

Colleague Letter” which was sent to schools by the Office for Civil Rights.

That letter stated that “Under Title IX, a recipient must generally treat

transgender students consistent with their gender identity in all aspects of

the planning, implementation, enrollment, operation, and evaluation of

single-sex classes.”

The district court flatly rejected the reasoning in that letter. “To defer to the

Department of Education’s newfound interpretation would be nothing less

than to allow the Department of Education to ‘create defacto a new

regulation’ through the use of a mere letter and guidance document.”

In sum, the district court concluded that the school “seeks to protect an

interest in bodily privacy that the Fourth Circuit has recognized as a

constitutional right while G.G. seeks to overturn a long tradition of

segregating bathrooms based on biological differences between the sexes.”

It found that “[b]ecause G.G. has failed to show that the balance of

hardships weighs in his favor, an injunction is not warranted while the Court

considers this claim.”

Obviously this is only one case, and the litigation between schools and

transgendered students will continue. Even this specific lawsuit is not

completely resolved. The student’s claims that the school violated the Equal

Protection Clause of the United States Constitution will continue to be

litigated by the parties, and the ACLU will likely appeal last week’s decision.

Schools should deal with the needs of transgendered students with care and

sensitivity, but it is important for schools to know that the law related to

transgendered students is far from settled.