Schools across the country have found themselves at the forefront of the societal debate on the appropriate manner in which to address issues surrounding accommodation of transgendered persons. Conflicting regulatory rulings, contemplated state legislation, and in the case of North Carolina, state prohibitions on accommodation have led to a patchwork of inconsistencies and doubt in relation to a school district's legal duties.

On Tuesday, April 19, the United States Court of Appeals for the Fourth Circuit ruled in favor of a transgender student, Gavin, who was born female and wished to use the boys' restroom at his rural Virginia high school. The ruling, G.G. v Gloucester County Sch. Bd., No. 15-2056 (4th Cir., Apr. 19, 2016), is significant, as it marks the first time that a federal appellate court has ruled that Title IX extends to protect the rights of transgender students to use the bathroom that corresponds with the student's gender identity.

Gavin had previously been granted approval by administration to use the boys' restroom and did so for a short period of time until the school board adopted a policy prohibiting him from using the bathroom of the gender with which he identifies. Instead, according to board policy, Gavin was required to use the restroom of his biological gender or a separate, unisex restroom. Gavin filed a lawsuit claiming that the school board impermissibly discriminated against him in violation of Title IX and the Equal Protection Clause.

In reaching its decision, the Fourth Circuit Court of Appeals analyzed the Department of Education ("DOE") regulations implementing Title IX. Those regulations permit schools to provide "separate toilet, locker room, and shower facilities on the basis of sex," so long as the facilities are comparable. The question the Court faced in light of this regulatory guidance was how to apply the "separate but equal" mandate to transgender individuals.

The DOE argued that the regulation should be interpreted to mean that schools generally must treat transgender students consistent with their gender identity; the Gloucester school board argued for an interpretation that defined students consistent with their biological sex. The Court recognized that the plain language of the regulation clearly permits schools to provide separate toilet, locker room, and shower facilities for its male and female students. By implication, the regulation also permits schools to exclude males from the female facilities, and vice versa. Although the regulation is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms, the Court concluded it is susceptible to two interpretations – determining maleness or femaleness is either a matter exclusively of biology, or it is a matter of gender identity.

The Court agreed that public restrooms, locker rooms, and showers historically have been separate on the basis of sex, and that individuals have a legitimate and important interest in bodily privacy. Nonetheless, the Court stated that these safety concerns or privacy interests should be addressed by the DOE or Congress, and not the Court. Thus, the Court held that it was required to afford deference to the DOE's interpretation. In so doing, the Court held that an individual's sex should be determined by reference to the student's gender identity, i.e., consistent with DOE interpretation.

The Fourth Circuit only addressed the student's claims with respect to Title IX and whether Title IX extends to gender identity. The case has been remanded back to the district court to decide whether the school board violated Title IX and the Equal Protection clause of the 14th Amendment. However, the Fourth Circuit's ruling only has precedential value in that circuit (encompassing Maryland, Virginia, West Virginia, North Carolina, and South Carolina), which means those states are now required to follow the DOE's interpretation of Title IX – that schools generally must treat transgender students consistent with their gender identity.

What Does This Mean for Your District?

Although not binding in the Seventh Circuit, which encompasses Wisconsin, the Fourth Circuit's decision is instructive as to how Wisconsin school districts should address restroom, locker room, and shower concerns under Title IX. Additionally, the DOE has been aggressive in its efforts to ensure that transgender students can use bathrooms in public schools that correspond with their gender identities. In November 2015, the DOE Office of Civil Rights ("OCR") issued a letter of findings to a Chicago-area school district demanding that the school district give unfettered locker room access to a transgender student for the facilities of the gender in which the student identified. The OCR gave the school district only 30 days to resolve the matter or risk forfeiting Title IX funding. The school district reached a settlement with OCR prior to having its federal funding rescinded.

School districts should begin the process (if they have not done so already) of developing policies to set the parameters and processes the district will follow when a transgender student seeks guidance and clarity. A district should further ensure that its non-discrimination policy is comprehensive in scope as to all protected classes of students. District policies should address how the district will ascertain the student's gender identity; what proof, if any, a district will require; the manner in which a student should be addressed and allowed to change his/her name; student dress codes; student records; physical education class; school-sponsored and WIAA-sanctioned sports; and of course, restroom, locker room, and shower facilities.

If your district has a prior policy in place regarding transgender students and gender identity, your district should consider revising the policy to ensure it does not run afoul of Title IX. Ultimately, school districts should be prepared to respond to a request from a student seeking direction as to school processes and procedures. Now is the time to prepare for the inevitable and ensure the district has laid the framework to quickly and fairly respond.