Transgender Legal Update (Feb. 22, 2017)

For many years, PSBA has urged its members to work with transgender students and their families to meet the needs of individual students and to provide them with a safe and supportive school environment.  In addition to continuous updates on the law, PSBA has provided in depth training and materials on practical ways to accommodate transgender students.  However, there are lawsuits pending in Pennsylvania and the United States that still must be decided before we know whether Title IX can be used to protect individuals from discrimination based on gender identity.  Some of these cases have been in the news in recent weeks and interim orders have been issued.  Links to these orders are found at the end of this article.

Terminology and Legal Conflicts Regarding Title IX
Cisgender is a term used to describe individuals whose gender identity aligns with their gender at birth, i.e., a person born as a biological girl identifies as a girl.  Transgender individuals’ gender identity differs from their birth gender.  A transgender person born as a biological girl identifies as male.  Title IX prohibits discrimination in government programs based on sex.  Public schools are subject to Title IX and complaints may be investigated by the U. S. Department of Education Office for Civil Rights (OCR).  In addition, individuals may file lawsuits claiming violations of Title IX.  In private lawsuits, remedies for successful plaintiffs can include injunctive relief, compensatory damages, attorneys’ fees and costs. Title IX regulations permit but do not require designation of sex-segregated facilities such as girls’ and boys’ bathrooms and locker rooms.  Central to legal disputes over Title IX is this question:  “What is “sex?”  Those advocating protection under Title IX for transgender students say that the students’ sex is determined by gender identity.  Those opposing this view say that Title IX protects individuals based on their sex at birth or their biological sex.

Equal Protection/Bodily Privacy:  U.S. Constitutional Claims
Cases brought by transgender students typically include that forcing them to use sex-segregated facilities based on their biological/birth gender instead of based on gender identity violates their right to Equal Protection under the U.S. Constitution.  Those brought by cisgender students argue that their right to privacy, protected by the U.S. Constitution, is abridged by permitting people who are biologically one sex to use facilities designated for the other sex.

May 13, 2016, guidance from U.S. Departments of Education and Justice Rescinded on February 22, 2017
Citing the need to give guidance to the U.S. Supreme Court in the G.G. case from Virginia (discussed below), the Trump Administration issued a two-page Dear Colleague letter withdrawing the May 13, 2016, statements of guidance and policy on transgender students as well as a similar policy letter on the topic issued by the Department of Education on January 7, 2015. The letter states, “These guidance documents take the position that the prohibitions on discrimination “on the basis of sex” in Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. § 1681 et seq., and its implementing regulations, see, e.g., 34 C.F.R. § 106.33, require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.” Citing a need for local school districts and states to take a primary role in decisions regarding educational policy, the significant amount of litigation engendered on both sides of this issue, and the fact that there is currently an injunction against enforcement of the Obama Administration guidance, the decision was made to withdraw and rescind that guidance. “The Departments thus will not rely on the views expressed within them.”

The letter emphasizes that students have the right to continued protection from discrimination, bullying and harassment. “All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms.” However, it does not further suggest an interpretation of existing law or add to existing law in any way.

Pennsylvania Policy matters affecting transgender students
August 8, 2016 –
Policy permitting birth certificate to be amended to reflect different gender. http://www.transequality.org/sites/default/files/docs/PA-BC-Policy.pdf

August 1, 2016 – Pennsylvania Department of Education Pennsylvania Information Management System (PIMS) manual on reporting student gender, page 19:

Reporting Student Gender In accordance with non-regulatory guidance issued by the U.S. Department of Education, Office for Civil Rights, regarding the rights of transgender students under Title IX of the Education Amendments of 1972, a student or parent/guardian may request a change of the student’s listed gender, first name or middle name on their records. If this request occurs, the LEA may report the student’s preferred information using the following guidelines:

  • The change must first be made in PASecureID.
  • The PIMS data (first name, gender, and date of birth) must match what is reported in PASecureID.
  • The student’s name and gender information reported in prior school years will not be updated.
  • The student’s PASecureID will not be changed.

http://www.education.pa.gov/Documents/Teachers-Administrators/PIMS/PIMS%20Manuals/2016-2017%20PIMS%20Manual%20Volume%201.pdf

What does it mean that the United States Supreme Court has agreed to hear the G.G. case from Virginia?
G.G. involved a transgender boy who sought to use the boys’ restrooms at his school. His case predates the May 13, 2016 federal. Guidance.  However, by the time he made his complaint, OCR already interpreted Title IX to protect students from discrimination based on gender identity.  This was well known to public school districts.  An unpublished OCR letter on G.G.’s complaint stated Title IX applied to this matter.  The school district disagreed and the case went to a federal district court (trial court).  After the trial court rejected G.G.’s claim of discrimination, the Fourth Circuit Court of Appeals held it applied the wrong standard to the case.  The Fourth Circuit stated the trial court must defer to the enforcing agency’s (OCR’s) interpretation of the statute it enforces.

On Friday, October 28, 2016, the Supreme Court agreed to consider two questions raised by the school district on appeal. One question seeks to have the court to decide when an agency interpretation is entitled to deference.  Was it enough that there was an unpublished letter setting out the agency’s position?  Regulations adopted by agencies have the force and effect of law.  The court will consider whether a guidance that does not carry the force of law must be given deference by the courts.

The other issue the Supreme Court agreed to consider is whether the federal government was correct in its interpretation of Title IX.  Can it be read to prohibit discrimination based on gender identity?

The U.S. Supreme Court will hear oral argument on this case on March 28, 2017.

What is the status and effect of the Texas preliminary injunction case?
In August, a Texas federal district court judge issued a nationwide preliminary injunction prohibiting the federal government from enforcing the May 13, 2016 guidance.  On October 18, 2016, the judge reiterated that this order applies nationally, including to the 37 states which did not join this lawsuit.  The United States Justice Department on Friday, February 10, 2017, withdrew its request for a limited stay of this injunction.  The Obama administration sought to limit the scope to the plaintiff’s twelve states rather than a nationwide injunction.  Some believe this signals the Trump administration expects to develop different policy from that announced in the May 13, 2016 guidance but no comment on this issue has been made..  PSBA will keep members informed about this case.

This injunction does not protect a school district from private lawsuits by transgender students.  Remember that these can result in significant costs including a successful plaintiff’s attorneys’ fees in addition to your own defense costs not covered by insurance.

Are there any lawsuits pending in Pennsylvania regarding transgender students?
Yes.  On October 6, 2016, several transgender plaintiffs sued Pine-Richland School District for formally adopting a requirement that students use either the facilities that correspond to their biological sex or unisex facilities.  This lawsuit will work its way up through the federal court system.  The students allege violation of Title IX and the Equal Protection Clause of the United States Constitution.

Oral arguments on the district’s motion to dismiss and the plaintiffs’ motion for a preliminary injunction took place on December 2, 2016 in a lengthy court proceeding.  As of this writing, there is no decision.  PSBA will keep members informed about this case.

What is the status of other lawsuits in the news?
Federal courts in Ohio and Wisconsin have issued preliminary injunctions against school districts.  These orders prohibit discrimination based on gender identity and so operate in favor of the position of transgender student plaintiffs.

In Illinois, cisgender students filed a lawsuit against a school district for allowing transgender students to use facilities aligned with their gender identity.  They argue that this violates their U.S. Constitutional right to privacy.  The cisgender plaintiffs sought a preliminary injunction to prevent transgender students from using sex-segregated facilities aligned with their gender identity.  A federal court Magistrate Judge recommended against granting this injunction.  This will be finally decided by a district court judge.

PSBA

Policies
PSBA policy services writes and issues legally compliant policies for school districts to use.   PSBA has received model policies and feedback from stakeholders on each side of this important issue passionately arguing that PSBA should issue a policy guide on transgender students and sex-segregated facilities.  PSBA is still unable to issue a policy guide on this. The law is not only unsettled, but there are active cases supporting opposite views which will decide this one way or the other.  For this reason, we have urged local school districts to develop procedures to work with transgender students.  If a local school district wishes to adopt policy, we recommend they do so in consultation with their solicitor and the community.  We urge them to be sensitive to the needs of transgender students, a vulnerable community who need protection and support.

Platform
PSBA’s members have not chosen to adopt a platform position in this area, although some items were put forth in 2016.

Training
PSBA has offered live training to members in Spring Legal Roundup, School Leadership Conference and at the Solicitors’ Symposium.  One of these trainings is available for free through the LEARN portal.

Articles and up-to-the-minute ‘blasts’
Look to DailyEDition, the Bulletin and emails for information on Transgender issues.

RESOURCES AND LINKS TO ORDERS AND OPINIONS DISCUSSED ABOVE

PSBA Training Portal – Video CFR-109 Supporting Transgender Students
https://training.psba.org/ets/store/
Includes live training session, articles and materials regarding transgender students.

U.S. Supreme Court has agreed to hear in Virginia transgender case
G.G. v. Gloucester County School Board,
No. 15-2056 (4th Cir. 2016)

April 19, 2016 Opinion of the 4th Circuit Court of Appeals
http://apps.washingtonpost.com/g/documents/local/court-opinion-4th-circuit-sides-with-transgender-high-school-student-suing-school-board-for-access-to-boys-bathroom/1960/

G.G. v. Gloucester County School Board, No. 16-273 (U.S. Supreme Court)
October 28, 2016 Certiorari Granted on following questions:

  1. If Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?
  2. With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?

Texas injunction case
State of Texas v. United States of America, No. 7:16-cv-00054-O (U.S. District Court for the Northern District of Texas 2016)

August 21, 2016 preliminary injunction order in Texas case https://www.texasattorneygeneral.gov/files/epress/Texas_et_al_v._U.S._et_al_-_Nationwide_PI_(08-21-16).pdf

August 25, 2016 PSBA analysis of preliminary injunction order in Texas case
https://www.psba.org/2016/08/transgender-guidance-082516/

October 18, 2016:  clarification order in Texas case
https://www.texasattorneygeneral.gov/files/epress/Order_10-18-16.pdf?cachebuster%3A48=&utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

 October 20. 2016:  Notice of appeal of preliminary injunction filed with Fifth Circuit Court of Appeals
https://cdn-files.nsba.org/s3fs-public/reports/TX%20v.%20US%20-%20DOJ%20Notice%20of%20Appeal.pdf?bVS4kTlPV9bTteo.q0N0po039yQsndRV

February 12, 2017:  Defendants-Appellants’ Notice of Withdrawal of Motion for Partial Stay Pending Appeal and Joint Motion to Cancel Oral Argument
http://files.eqcf.org/cases/16-11534-13872109/

Pennsylvania lawsuit by transgender students against public school district
Evancho, et al v. Pine-Richland School District, et al,
No. 2:16-cv-01537 (W.D. Pa. 2016)

September 12, 2016 resolution adopted (9/13/16 article)
http://www.post-gazette.com/local/north/2016/09/13/Pine-Richland-school-board-switches-bathroom-policy-for-transgender-students-pittsburgh/stories/201609130146

This resolution agreed to by a majority of the board of directors of the Pine-Richland School District indicates our support to return to the long-standing practice of providing sex-specific facility usage. All students will have the choice of using either the facilities that correspond to their biological sex or unisex facilities. This practice will remain in place until such time that a policy may be developed and approved.

 October 6, 2016 complaint by transgender students alleging violation of Title IX and right to Equal Protection under the U.S. Constitution
http://www.lambdalegal.org/sites/default/files/evancho_pa_20161006_complaint_0.pdf

November 14, 2016:  Pine-Richland’s Motion to Dismiss students’ case
https://cdn-files.nsba.org/s3fs-public/reports/Motion%20to%20Dismiss.pdf?BzCIjheDHMSMqcaGtl2M5diFUSzBuCT8

Miscellaneous recent cases nationwide

  • Whitaker v. Kenosha Unified School District No. 1 Board of Education, et a, No. 16-cv-943-PP (E.D. WI 2016)

September 22, 2016: Preliminary injunction granting transgender student use of facilities congruent with gender identity: http://transgenderlawcenter.org/wp-content/uploads/2016/08/33-Order-Granting-PI.pdf

  • Board of Education of Highland Local School District v. United States Department of Education, No. 216-cv-524 (S.D. Ohio)

NOTE:  “Jane Doe,” the student intervened as third party plaintiff, suing school district

September 26, 2016:  Preliminary injunction allowing transgender student use of facilities congruent with gender identity
http://www.nclrights.org/wp-content/uploads/2016/10/Highland-Local-School-District-v.-U.S.-Dept.-of-Educ._Order-on-PI-motions.pdf

December 15, 2016:  Split Sixth Circuit declines to stay the preliminary injunction so student continues to use restroom in accordance with gender identity rather than biological sex
http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0291p-06.pdf

  • Students and Parents for Privacy, et al v. U.S. Department of Education, et al, 16-cv-4945 (N.D. Ill. 2016)

October 18, 2016:  Magistrate Judge recommends that the District Court should deny plaintiffs’ request for a preliminary injunction against implementation of the school district policy which allows transgender students use of facilities congruent with gender identity.
http://www.politico.com/f/?id=00000157-d93c-dc39-a7df-f9bf7d1e0002

NSBA-generated information

NSBA Legal Clips — http://legalclips.nsba.org
Provides current news and information on cases and transgender issues along with other legal matters nationwide.  (Now a subscription service)

NSBA FAQs on Transgender Students (updated as law develops so check back frequently) — https://www.nsba.org/nsba-faqs-transgender-students-schools