Today the Fourth Circuit Court of Appeals ruled that a lower court improperly dismissed the claim of a transgender male plaintiff who alleged that the Gloucester, Virginia school district's policy barring him from the boys' restroom violated Title IX. (We earlier blogged about that earlier district court decision here.) Today's decision paves a clear path for a judgment that provides permanent relief to the plaintiff in the form of a permanent injunction against the school's exclusive policy. Additionally, the court reinstated plaintiff's request for a temporary injunction that will allow him to use the boys' bathroom while the case is still pending.
The plaintiff's central argument is that Title IX's ban on sex discrimination includes discrimination that targets transgender students by treating them differently from other members of their affirmed gender. In support of this argument, he pointed to a 2015 opinion letter by the Department of Education that contains this interpretation. But the district court refused to give weight to this opinion letter because in the judge's view, it conflicted with a provision of the Title IX regulations that permit schools to offer separate bathroom facilities for members of each sex.
The appellate court explained it is a settled matter of administrative law that when an agency's regulation is ambiguous, courts should defer to the agency's own interpretation of that regulation unless that interpretation is plainly erroneous. It held that Title IX's regulation permitting separate bathrooms for each sex is ambiguous with respect to transgender students, as "sex" could be understood to refer to biological sex (the school district's position) or to a broader definition of sex that incorporates gender identity. In light of these multiple plausible interpretations of the regulation, the court reasoned, the district court should defer to the Department of Education's interpretation of that regulation, which would require school to permit transgender students to use the facility that is consistent with their gender identity rather than their birth-assigned sex. Underscoring this conclusion, the appellate court determined that the Department of Education's interpretation was not plainly erroneous because it is consistent with the definition of sex that was prevailing even at the time the regulations were promulgated, a definition that incorporated consideration of various physical,
psychological, and social aspects of sex and gender.
The appellate court therefore concluded that the plaintiff's claim should be reinstated. This means that the case returns to the lower court to continue the litigation process as if it had not been dismissed. The plaintiff can also try again to get a preliminary injunction that would provide immediate access to boys' restroom while the case is pending. Notably, while the plaintiff asked the court of appeals to assign the case to a different lower court judge on remand (as issue we blogged about earlier, here), the appellate court refused to take what it considered to be an "unusual" step.
This decision will likely have an impact outside the context of this plaintiff and the public schools in Gloucester, Virginia. Most directly, it could affect the political discourse in the wake of a spate of new state laws targeting transgender individuals' right to use the bathroom consistent with their gender identities. Many have pointed out that these state laws jeopardize the federal funding for public schools and state universities who can no longer comply with Title IX and state law. Some politicians have pointed to the district court decision that was overturned today as evidence that those state laws and Title IX did not conflict. But today's decision affirms that Title IX means what the Department of Education says it means, and that means, schools that restrict transgender students' bathroom access are not in compliance with Title IX.