August 4, 2016 – Yesterday, the U.S. Supreme Court granted the defendant school board’s petition to put the district court’s order on hold in G.G. v. Gloucester. The district court’s order would have given a transgender student access to the restroom that corresponds to the student’s gender identity.

In Gloucester, the school district adopted a policy stating that the use of boys’ and girls’ restrooms and locker rooms “shall be limited to the corresponding biological genders, and students with sincere gender identity issues shall be provided an alternative facility.” The student (a transgender boy) and his parents filed a Title IX claim in federal court. The district court granted the defendant school board’s motion to dismiss the Title IX claim, declining to adhere to guidance documents issued by the Department of Education and Department of Justice. The Fourth Circuit reversed the dismissal and remanded it back to the district court, concluding that the district court did not give appropriate deference to the Department of Education’s interpretation of the Title IX regulations. On remand, the district court granted an injunction permitting the student to access the restrooms that correspond with his gender identity.

The defendant school board then filed an emergency appeal with the U.S. Supreme Court, asking the Court to put the lower court rulings on hold until it filed its petition for review with the U.S. Supreme Court (The school board intends to file its petition for review by August 29, 2016.). In a 5-3 decision, the U.S. Supreme Court granted the school board’s request and temporarily blocked the Fourth Circuit’s mandate and district court’s injunction, continuing the status quo at least until the defendant school board petitions the U.S. Supreme Court for review and the Court decides whether to hear the case. If the Court denies review, the lower court rulings will automatically go back into effect. If the Court grants review, the lower court rulings will remain on hold until the Court hears oral arguments and issues an opinion in the case.

This decision is specific to the Gloucester case and does not impact any other pending litigation or decisions that have been issued. There is pending litigation which may be decided before the Supreme Court weighs in on this issue, including the lawsuit that was filed by a group of students and parents in Palatine, Illinois. The plaintiffs are asking the court to invalidate a resolution agreement reached between the school district and the Office for Civil Rights, which gave a transgender girl access to the girls’ locker rooms. Because this case is in the Seventh Circuit, the decision will directly impact Wisconsin school districts.

In addition, we don’t believe that the U.S. Supreme Court’s decision to put the lower court orders on hold will change the positions of the Office for Civil Rights or the Department of Justice. OCR and DOJ will almost certainly continue to accept and decide Title IX complaints consistent with the Dear Colleague Letter that was issued in May.

While these cases work their way through the courts, we continue to recommend that school districts carefully review the Dear Colleague Letter issued by OCR and DOJ, as well as the policy provisions cited with approval in the Examples of Policies and Emerging Practices for Supporting Transgender Students document attached to the Dear Colleague Letter. We also recommend that school districts review their existing facilities and consider developing guidelines or procedures that will govern issues relating to transgender or gender nonconforming students, such as access to locker rooms, restrooms, and the impact of any existing Section 504 or IDEA status.