There have been new developments in G.G. v. Gloucester, the case involving a transgender student that was previously before the U.S. Supreme Court. As reported in our previous Legal Updates, this case began in 2015 after a school district adopted a policy stating that the use of boys’ and girls’ restroom and locker rooms “shall be limited to the corresponding biological genders, and students with sincere gender identity issues shall be provided an alternative private facility.”  As a result, Gavin Grimm, a transgender high school student, was prohibited from using the restroom that corresponded to his gender identity. In response, he filed a lawsuit alleging that the district’s policy discriminated against him in violation of Title IX and the Equal Protection Clause.

The case was eventually appealed to the U.S. Supreme Court. While the case was pending before the Court, the Trump Administration rescinded the guidance documents that had been issued by the Obama Administration. The Obama Administration had interpreted Title IX to require school districts to allow transgender students to use the restrooms corresponding to their gender identity and otherwise treat them consistent with their gender identity. Because the level of deference owed to the Obama Administration Guidance had been a central issue in Gavin Grimm’s lawsuit, the U.S. Supreme Court declined to hear the case and instead remanded it back to the lower courts.

On May 22, 2018, the federal district court denied the school district’s motion to dismiss. The court concluded that Gavin Grimm had sufficiently pled that he was discriminated against on the basis of sex in violation of Title IX and the Equal Protection Clause. Specifically, the court concluded that plaintiffs may bring a Title IX and/or Equal Protection Clause claim based on their transgender status and allegations of gender stereotyping. Regarding the competing privacy rights of other students, the court decided that there were “many other ways to protect privacy interests in a non-discriminatory and more effective manner than barring Mr. Grimm from using the boys’ restrooms.”

In making its decision, the court relied heavily on the Seventh Circuit’s decision in Whitaker v. Kenosha Unified School District No. 1 Board of Education (see our previous Legal Update for an explanation of the Whitaker decision). The court emphasized the similarities between the facts of Gavin Grimm’s case and the facts of Whitaker. For example, in both cases, transgender male students were required to either use the girls’ restroom or gender neutral restrooms that were far from their classrooms, despite the fact that they had been using the boys’ restroom for some time without incident or complaint from other students. Both students had consistently asserted their gender identity and had been diagnosed with gender dysphoria. Both students had legally changed their names and pronouns. Given these similarities and the “persuasive” and “sound” reasoning of the Seventh Circuit in Whitaker, the court agreed with the Seventh Circuit’s conclusion that “a policy that requires transgender to use bathrooms not in conformity with their gender identity . . . amounts to discrimination on the basis of transgender status under Title IX.”

Because Wisconsin schools are located in the Seventh Circuit, the Whitaker decision was already important. It provided Wisconsin schools with guidance as to how federal courts in our jurisdiction would consider cases with similar facts. The district court’s decision in Gloucester underscores the importance of doing an individualized factual analysis when responding to requests from transgender students. Comparing the circumstances to the circumstances in Whitaker is an important part of this factual analysis.

The school district has appealed the district court’s decision to the Court of Appeals for the Fourth Circuit. We will continue to keep you advised of any developments in this case and other pending lawsuits involving transgender students. If you have questions about this Legal Update or would like assistance in responding to a particular student request or reviewing or drafting procedures relating to transgender students, please contact Alana Leffler at aleffler@buelowvetter.com or 262-364-0267, Gary Ruesch at gruesch@buelowvetter.com or 262-364-0263, or your Buelow Vetter attorney.