(Another?!) Transgender Update

There have been a few significant developments since our last update on this

topic. Let’s cover them briefly, and then talk about practical next steps:

NSAA Policy Update. By now, you’ve all heard that the NSAA Board’s

gender participation policy will remain in effect after the district-initiated

proposals failed this month. Here’s the policy. This will now be policy for

NSAA activity eligibility indefinitely, and by design it will require some

decisions by your board.

Federal Court Litigation Update. In our most recent update on this topic,

we covered the then-current federal court decisions in which a court held

that a school could limit the use of its restrooms based on biological sex.

The student in that case, G.G. v. Gloucester Cnty. Sch. Bd., No. 15-54

(E.D.Va. Sept. 17, 2015), appealed the district court decision to the United

States Court of Appeals for the Fourth Circuit. Yesterday the Court of

Appeals issued an opinion, found here, which reversed the initial court


The Fourth Circuit concluded that the district court “did not accord

appropriate deference to the relevant Department of Education

[interpretation of its own] regulations.” G.G. v. Gloucester Cnty. Sch. Bd.,

No. 15-2056 (4th Cir Apr. 19, 2016). Translation: courts should listen to the

DOE/OCR interpretation of their own regulations. In rendering its decision,

the Fourth Circuit did not outright decide that G.G. should be permitted to

use the restroom facility consistent with his gender identity. Rather, they

sent the case back to the district court to determine whether G.G.’s claims

are valid under this more deferential approach.

OCR Enforcement Action Update. There have also been several OCR

investigations and enforcement actions to date regarding gender identity,

facility use, and activity participation. One Illinois district debated

withdrawing a settlement agreement with OCR, which would have left the

OCR with the choice of filing a compliance lawsuit against the district. We

had been tracking that case closely, but in December that district decided

instead to continue its settlement with OCR rather than engage in litigation

over the gender identity issues. To date, OCR has successfully “settled”

these cases by asking districts to do things like provide facility use and

activity participation for students based on gender identity.

What do these updates mean? These updates make one thing obvious:

the law in this area remains unsettled, even as the enforcement position of

the federal agencies remains perfectly clear. The newest opinion in the G.G.

case from the Fourth Circuit is a big win for groups like OCR and the ACLU

which have been arguing that Title IX and other laws protect individuals on

the basis of their gender identity. It represents the first major court decision

endorsing the OCR’s position regarding protections for transgender students.

What are the next steps for Nebraska boards of education? The NSAA

Board’s gender participation policy requires local school boards to decide

how they will handle activity participation requests from transgender

students. Now that we know the NSAA policy will remain in effect

indefinitely, we will be providing our KSB policy service and policy update

subscribers with a series of policy options for addressing activity

participation. However, the new G.G. case further complicates the questions

not addressed in the NSAA policy, such as facility use, student records, and


To date, we have advised our clients to tread lightly on those other issues

and handle situations on a case-by- case basis. We still firmly believe that a

very prudent decision for boards is to move forward slowly and avoid making

sweeping decisions which could subject the district to litigation no matter

what policy they put in place. We think districts with updated sex

discrimination policies are entitled to wait for further developments in the

law. As we’ve said from the beginning, the law is changing quickly in this

area as evidenced by G.G. However, at a minimum school boards will need

to address activity participation via policy or directives to administration.

Should your board elect to address issues like facility use at the same time,

we want to make options available, and we plan to do so for KSB policy

subscribers in the coming weeks.

One other note about the G.G. case to consider when discussing this at the

board level: Many patrons in the G.G. case addressed the board when it was

considering how to form policy around the issues of gender identity.

Generally, that district’s patrons opposed allowing transgender students to

use the bathroom facility consistent with their gender identity. The board

ultimately decided to adopt a policy which said students must use the

facilities consistent with their sex at birth. To our surprise, the Fourth Circuit

judges quoted the most unkind comments made by patrons to imply that the

board had improper motivations in setting its policy.

The question of transgender rights is going to be the subject of discussions

in a lot of settings in the months to come, including your board meetings. As

board members and administrators, you do have the right to form your own

personal opinions and you have First Amendment rights to free expression.

However, as school attorneys we believe that our job in defending your

board’s policy decisions could be more difficult if administrators and board

members make a lot of sweeping public pronouncements about this issue.

We would prefer that board members and administrators keep their own

counsel and refrain from making provocative statements about the issue of

transgender student rights, even as parents, patrons, and others may have

very strong viewpoints on either side of this issue. We certainly believe

personal convictions can and should drive policy in your community;

however, on this particular issue we believe your district will be in the best

position to defend its policy actions if the discussion of these issues is

focused on the legal questions.

If you have questions or concerns about these or any related issues or are

interested in your board’s policy options, we recommend that you consult

with your school district’s attorney or call Karen, Steve, or Bobby.