Title IX and Transgender Facilities Access: Divided Courts and No Consensus

          North Carolina's House Bill 2 continues to make national headlines. Yet, it bears mentioning that Title IX's applicability to allowing transgender access to school facilities is one that has embroiled several states, not just North Carolina. Of course, it is not surprising to understand that transgender individuals have been secretly using the restroom of their preference for as long as there have been restrooms. What is new under the sun is that transgender subjective choice can amount to a legal right. The controversial idea gained significant foothold after the U.S. Department of Education provided written guidance to school systems regarding the interpretation of the term "sex" as defined used in Title IX. See Office of Civil Rights, Dept. of Educ., Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities 25 (2014) available at http://www2.ed.gov/about/offices/list/ocr/docs /faqs-title-ix-single-sex-201412.pdf. See also G. G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. Va. 2016).

      According to the Department, the term "sex" is not a matter to be interpreted strictly according to biology but must rather encompass an individual's subjective gender identity as well. As such a transgender individual, according to the Department, has a legal right to utilize school bathroom or locker room facilities that match their subjective gender identity, even if this differs from their biological gender. The response to this has been far from uniform, with school systems in different districts alternatively coming in to conformity with the Department's guidance or choosing to litigate the issue.

     For instance, in one Illinois school district, school officials entered into an agreement with the Department of Education’s Office of Civil Rights to allow transgender students to utilize locker and restroom facilities that correspond to transgender students' subjective sexual identity, something that previously would have been off-limits. This action was subsequently challenged in federal court on grounds that the school system’s agreement with the Department of Education . . . “trample[s] students' privacy and other constitutional and statutory rights by forcing 14- to 17-year-old girls to use locker rooms and restrooms with biological males." See Students& Parents for Privacy v. United States Dep't of Educ., 2016 U.S. Dist. ___(N.D. Ill. June 15, 2016). Similar litigation has developed in other jurisdictions raising essentially the same issue: inadequate facility management which has created an unsafe educational environment. Currently, a number of states have litigation pending, the results being far from one sided. A sample of the most significant litigation follows:


Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ., 97 F. Supp. 3d 657, 661 (W.D. Pa. 2015)( No Equal Protection, Title VII, or Title IX violation by requiring transgender student to use facilities that correspond to biological sexual identity)


Bd. of Educ. v. United States Dep't of Educ., 2016 U.S. Dist. ____ (S.D. Ohio Aug. 15, 2016); G. G. v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. Va. 2016) (Fourth Circuit reverses trial court dismissal of transgender claim of violation of Title IX claim and remands for trial court consideration of Department of Education guidance as controlling authority in determining whether Title IX violation had occurred)


Texas v. United States, 2016 U.S. Dist. LEXIS 113459 (N.D. Tex. Aug. 21, 2016) (Preliminary injunction granted enjoining U.S. Department of Education from enforcing its guidance recommendations against recalcitrant school district).


Bd. of Educ. v. U.S. Dep't of Educ., 2016 U.S. Dist.____ (S.D. Ohio Sept. 26, 2016) (Preliminary injunction of transgender student granted prohibiting school district from prohibiting use of restroom that conforms to students subjective gender identity).

Court of Appeals: counsel's few words during 19 minute TPR hearing troubling but not per se inneffective assistance.

     What is a defense attorney to do? One attorney no doubt was asking this question in a 2015 Orange County, North Carolina District Court case that landed this summer before the North Carolina Court of Appeals. The case, In the Matter of T.D. and J.D., __N.C. App.__,__S.E.2d__(July 19, 2016), involved a Respondent with a long history of serious substance abuse issues and a history
of not complying with court directives. The hearing before the Orange County District Court lasted all of 19 minutes. During that time, the Respondent alleged in her appeal, that her counsel " . .uttered fewer than fifty words during the entire termination hearing , most of which were irrelevant to the proceeding. . .did not introduce any evidence at either the adjudication or the disposition stage of the hearing; and. . .never objected to the trial court finding termination of parental rights in the juveniles’ best interests."

     Such allegations are no doubt serious, especially when the Court of Appeals in its opinion found the "respondent’s characterizations of her trial counsel’s actions, or lack thereof. . . . fully supported by the record." Not surprisingly, the case was remanded to the trial court for further fact finding on the issue of effective assistance of counsel and if present, whether such a deficient performance prejudiced respondent such that she is entitled to a new termination of parental rights hearing.

     On remand, a number of questions will indeed have to be asked, particularly with regard to counsel's ability to consult with the respondent and whether she had adequately assisted counsel in the preparation of the defense of the hearing. Notwithstanding the ultimate outcome of the case, a few things bear emphasis with regard to defense counsel's obligation at any juvenile hearing, regardless of the assistance provided by the client.

     First, if the client is absent, has provided counsel no assistance and no direction as to the client's position, this same fact should be placed on the record. In fact, ethical requirements may mandate such behavior. (See RPC 223- mandatory withdrawal where attorney unable to locate client after diligent search; 03 FEO 16 same as applied to dependency proceedings with the addition that counsel may not advocate for a particular position). Second, when the client is present at the hearing and is available for consultation, the attorney not only has the obligation to consult with the client about the direction they wish to take during the litigation but advocate zealously on the client's behalf to the extent permitted by legal and ethical constraints. (See In re S.N.W., 204 N.C. App. 556, 560, 698 S.E.2d 76, 79 (2010)). This may not give the attorney much to work with in terms of a substantive defense. However,  it must be remembered that it is not the respondent's obligation to provide any evidence at the adjudicatory stage of an dependency or termination proceeding. Accordingly,  it is entirely appropriate to follow a strategy where the defense confines its case to taking pot shots, if you will, at the evidence provided by the county department of social services: challenging witnesses and evidence provided by the petitioner or movant calculated to establish the dependency case. Under very few circumstances is it legally or ethically acceptable to remain essentially silent if a client's wishes are clearly able to be ascertained through simple consultation. Doing so is perilous, exposes one to an ineffective assistance claim, and probably will result in an unpleasant call to one's liability insurance carrier.