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The United States Supreme Court Sends Virginia Transgender Bathroom Case Back to the 4th Circuit

March 6, 2017 marks a significant development in the case of Gloucester v. G.G., the closely followed and highly publicized Virginia transgender student bathroom case. The Gloucester case involves a local school board policy that effectively denies a transgender male high school student use of his school’s male bathroom and, in turn, the student’s claim of unequal treatment and discrimination by the board based upon sex under Title IX. The United States Supreme Court granted certiorari back in October 2016 certifying only two issues for its consideration: 1) whether deference should extend to an unpublished letter by the United States Department of Education, Office of Civil Rights (OCR), which does not carry the weight of law and was adopted in the context of the dispute at hand, indicating that Title IX applies to transgender identity, and 2) without deference to the agency, should the Department’s specific interpretation of Title IX be given effect. The United States Supreme Court will not hear the Gloucester case this month as scheduled. The Court vacated the ruling below and remanded the case back to the 4th Circuit Court of Appeals for reconsideration of the issues, presumably to include whether Title IX’s prohibition against discrimination on the basis of sex extends to gender identity. The Court takes such action notwithstanding requests from both parties that the case proceeds as scheduled and be heard this term.

The Supreme Court’s March 6, 2017 decision to remand the case is influenced by the 4th Circuit Court’s heavy reliance in reaching its decision below upon a 2015 OCR opinion letter. In that letter, OCR concludes that if schools opt to separate students in restrooms and locker rooms by sex, a school generally must treat transgender students consistent with their gender identity. The 2015 opinion letter was subsequently followed by May 2016 guidance from the Department of Justice and Department of Education (the Department) that confirms that schools generally should treat transgender students consistent with their gender identity and that the term “sex” under Title IX includes transgender identity. The Department’s May 2016 guidance issued under the Obama administration was rescinded in its entirety on February 22, 2017 under the Trump administration. No further guidance on this topic has been forthcoming from the Department. The Department has indicated that further time is needed to study the issue.

By its most recent action, the Supreme Court has declined to consider at this time the issue of whether “sex” under Title IX includes transgender identity. This leaves unclear the specific rights of transgender students under federal law. As previously indicated on this blog, discrimination based upon gender identity and expression is prohibited under Connecticut law and public schools must act accordingly. For specific guidance on this topic, contact our education law department at Berchem, Moses and Devlin and continue to consult our blog to keep abreast of further developments in this area of law and developments in the Gloucester case.