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).
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