On Friday October 28, 2016, the United States Supreme Court agreed to review a major transgender case. The case involves a 15-year-old Virginia high school student who, two years ago, declared himself to be a transgender male. His school granted him permission to use the boys’ restroom, and he did so until the school received numerous complaints from others. The local school board responded with a policy requiring students to use the restroom that matched the gender on their birth certificate, not their gender identity. The boy sued the school board for discrimination.
The district court dismissed the claim. The Fourth Circuit Court of Appeals reversed. It ruled not allowing the boy to use the restroom that matched his gender identity was sex discrimination. The school board has asked the U.S. Supreme Court to review the case (review is permissive, not mandatory) and asked the court to maintain the status quo while its appeal was pending. On August 3, 2016, the Supreme Court granted the latter request.
In May 2016, the U.S. Departments of Education and Justice issued a formal “Guidance” requiring schools which receive federal funding to allow students to use the single-gender restrooms that match their gender identity. Thirteen states, not including Michigan, challenged the Departments’ Guidance in federal court in Texas, asserting the Guidance exceeded the agencies’ rulemaking authority. The Texas court granted a nationwide preliminary injunction enjoining the enforcement of the Guidance while the case is pending. On October 20, 2016, the Government appealed the injunction.
Other federal courts have issued preliminary injunctions requiring schools to allow transgender students to use restrooms that match their gender identity. On September 22, 2016, a Wisconsin federal court ruled that Kenosha Unified School District was required to allow a transgender male student to use the boys’ restroom. On September 26, 2016, an Ohio federal court ruled a transgender female student must be allowed to use the girls’ restroom at school. On October 18, 2016, a federal magistrate judge recommended that the district court judge not issue preliminary injunction sought by a group of parents to undo a settlement agreement between a suburban Chicago high school and the Department of Education, which allowed a transgender girl to use the girls’ locker room with certain privacy screens. All of these cases involve high school students.
The Supreme Court is expected to rule on the Virginia high school case this term. Meanwhile, the lower courts are split on whether students should use the restroom that matches the gender on their birth certificate or their gender identity.
Contributed by Karen Piper, Attorney, Bodman Law Firm.
View the on-demand webinar “Transgender Issues in the Workplace” with Karen Piper.