Indiana Transgender Student Entitled To Damages in Bathroom Case

A federal court in Indiana ruled in favor of a transgender student's motion for summary judgment against a school district whose policies did not permit him to use the facilities that matched his gender identity. After the Seventh Circuit's decision in Whitaker, it is not terribly surprising that a court in that district court would have no trouble applying Title IX in a transgender student's favor -- and indeed, the court in this case had already granted the plaintiff a preliminary injunction ordering the school to let him use the men's room. But the court's most recent decision went beyond the injunction question, is notable for confirming that the district is indeed liable for money damages to compensate the plaintiff for harm caused by its policy of exclusion (though the court deferred to a jury the fact-laden question of when exactly the student's damages began to accrue).

In reaching this conclusion, the court had to address defendant Evansville Vanderburgh School Corporation's argument that the plaintiff had not done enough to put the school district on notice of his right to use the boys' bathroom. Until he filed this lawsuit at the end of his junior year, school officials arguably did not know, for example, that the plaintiff found the gender-neutral option available to him unsatisfactory, that he had begun to transition using hormones, and that he was limiting his water intake to avoid needing to use any bathroom at school. But the court said such notice is not required to establish liability. The uncontested facts were that the school's policy did not permit him to use the proper bathroom and so his rights were violated. ("EVSC has failed to point to any facts by which a reasonable factfinder could determine that it had any policy other than one requiring transgender students to use a bathroom that did not conform with their gender identify. In sum, EVSC’s practice violated Title IX. The violation occurred regardless of whether EVSC knew that J.A.W. or any other student was affected by its policy."). Moreover, the school's policy is an act of intentional discrimination, liability for money damages exists without regard to the actual notice plus deliberate indifference standard that applies when the harm to the plaintiff is caused by someone other than the defendant.

The court also ruled that the school board's policy violated the Constitution's Equal Protection clause.  Heightened scrutiny applies because the policy cannot be read without referencing the plaintiff's sex, and school "put forth no justification for its practice in its summary judgment briefing."


 J.A.W. v. Evansville Vanderburgh School Corp., No. 3:18-CV-37-WTL-MPB, 2019 WL 2411342 (S.D. Ind. June 7, 2019).

Supreme Court Won't Hear Challenging to School's Transgender-Inclusive Bathroom Policy

Yesterday the Supreme Court denied a petition for certiorari that, had it been granted, would have led the Court to review a Third Circuit appellate court ruling that upheld a Pennsylvania school district's policy of allowing transgender students to use restrooms and lockers in an inclusive manner, consistent with their gender identities. Students and parents who disagree with the policy had challenged it as a violation of the students' constitutional right to privacy, as well as under Title IX. By denying the petition, the Court ensures that the appellate ruling in the school's favor will stand.

This is good news for transgender students because it means there is no chance, in the near future anyway, that the Supreme Court will undermine this and other lower court rulings that uphold schools' inclusive bathroom and restroom policies. For now, while school districts will likely continue to face similar challenges, appellate courts will be free to construe the Constitution's due process clause, as well as Title IX, in support of the same conclusion as was reached by the Third Circuit, that neither source of law creates a right that is violated when schools adopt a gender-inclusive bathroom/locker room policy. Specifically, the Third Circuit agreed with the lower court that the student-plaintiff's privacy rights were not violated by sharing facilities with transgender students, and even if they were, "the state had a compelling interest in not discriminating against transgender students" to which the district's policy was narrowly tailored. The appellate court also endorsed the lower court's conclusions that the policy did not violate Title IX claim because (1) it applied equally to all students regardless of their sex and gender identity (2) "the mere presence of a transgender student in a locker room should not be objectively offensive to a reasonable person given the safeguards of the school’s policy."

Yet this good news accompanies concern arising from the Supreme Court's granting of cert last month in a Title VII employment discrimination case that will give the Court the opportunity to settle whether the law protects transgender employees from discrimination, either on the rationale that discriminating against someone's transgender status is a form of sex discrimination (since such discrimination targets someone because their sex and their gender are not aligned) or on the rationale that sex discrimination includes discriminating against someone whose gender identity and expression does not conform to stereotypes associated with that person's sex.  Since both of these theories have been used to support the rights of transgender students under Title IX to access bathrooms and locker rooms according to their gender identities, a negative outcome in the Title VII case could put Title IX cases in jeopardy (though Equal Protection claims, which have also been found to support transgender students' rights, would not be as directly affected.)  In other words, what the Court may be signaling by granting cert in case asserting transgender person's civil rights but denying it in a case challenging the accommodation of a transgender person's civil rights is that inclusive policies like the school district's here are legal, but not required. We will just have to see what the Court does next Term.

Doe by through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 525 (3d Cir. 2018), cert. denied, No. 18-658, 2019 WL 2257330 (U.S. May 28, 2019)

Parents May Continue to Litigate Title IX Challenge to High School's Transgender Inclusive Locker Room Policy

A district court in Illinois issued a ruling yesterday on a school district's motion to dismiss the various claims in a lawsuit filed by parents challenging its policy of permitting transgender students to use facilities that correspond to their gender identities.  The parents claim that their daughters have been upset and humiliated by having to share girls' locker rooms with other female students who have male anatomy. One parent alleges that the school denied her request to allow her daughter to access a private changing facility, and another that the school failed to investigate or remediate a situation where her daughter was exposed to another student's penis.

The court dismissed plaintiffs' claims that the school's transgender-inclusive facilities violate their daughters' constitutional rights to due process (bodily integrity) and religious freedom, as well as the parents' constitutional rights to autonomy in raising their children. But the court allowed the plaintiffs to continue to litigate their claim that the school district has violated their daughters' rights under Title IX. The court agreed that the plaintiffs had adequately alleged sexual harassment, of which the school had notice and responded to with deliberate indifference. The court noted that the Seventh Circuit has allowed harassment claims under Title VI and Title VII to survive motions to dismiss that minimally plead the elements of a harassment claim. These cases establish the pleading standard for Title IX harassment cases as well, and the details in the plaintiffs' complaint surpasses this low bar.

This ruling is the first of its kind in a transgender bathroom case, though importantly, the court was careful to point out its limited scope and preliminary nature --  noting that whether the plaintiffs "can ultimately prevail on this claim is a question for another day." I also think it's premature to worry that this case will somehow dismantle the trend in favor Title IX's protection of transgender students' rights by creating an inherent conflict between transgender students' rights and the rights of other students to be free of a sexual harassment. One possible outcome is that once the plaintiffs are required to supply evidence in support of their claims, they will not be able to establish as a general matter that the prospect of encountering a transgender student in a locker room is harassment that is severe or pervasive and objectively offensive.  It's also possible that the parents could win on very narrow grounds that still respects the school's policy of inclusion, but finds it marginally at fault for not doing more to accommodate all students' right to privacy, such as by making locker room alternatives available to anyone who is not comfortable in communal changing space. Either of these two possibilities seem much more likely than a court order enjoining the school from permitting transgender students to use the facilities that correspond to their gender identity, which even after this preliminary ruling in the parents' favor, still seems unlikely and far-fetched to me.

Decision: Students and Parents for Privacy v. School Directors of Township High School District 211, No. 16C 4945 (N.D. Ill. Mar. 29, 2019).

Florida School Loses Bathroom Discrimination Case to Transgender Student

Yet another court has ruled in favor of a transgender student's right to use the bathroom according to their gender identity. But unlike many of the previous judicial rulings we've blogged about on this topic, which have been in the context of preliminary relief, this court's ruling came after an actual trial. This means that rather than predicting the plaintiff's likely success on the merits, the court in this case had the opportunity to conclude that the plaintiff did in fact succeed on the merits. It awarded the plaintiff, a transgender high school student whose gender identity is male, a permanent injunction that permits him to use the boys' bathroom at Nease High School in Ponte Vedra Beach, Florida, as well as $1000 in damages.

If you've followed other cases like this, the reasoning employed by this court is consistent and familiar. Its Equal Protection analysis considered the school's bathroom usage policy, which was based on student's biological or birth sex, under intermediate scrutiny, a test that requires the school to present an important justification and reasonably tailored means. The school predictably argued that its policy served purposes like privacy and safety, but the court rejected them as logically inconsistent with the policy itself. All students can access privacy by using the stalls or one of several single-user bathrooms in the building. Nor was there any evidence to support the idea that a transgender student's presence in the boy's bathroom posed a safety risk. The plaintiff had used the boys' bathroom for a six-week period before the school banned him, during which time no problems occurred. Nor is there any evidence to suggest that a transgender student is more likely than any other student to threaten the safety of other users. The court also favored the plaintiff's Title IX claim, rejecting the school board's argument that because Title IX and its regulations permit bathroom facilities to be segregated based on "sex" that necessarily means biological sex to the exclusion of considerations of gender identity. Instead, the court concluded that "the meaning of 'sex' in Title IX includes 'gender identity' for purposes of its application to transgender students."

Adams v. Sch. Bd. of St. Johns Cty., Fla., 2018 WL 3583843 (M.D. Fla. July 26, 2018).

Another Court Upholds Transgender Students' Bathroom Rights

Another federal court has ruled that transgender students have a right to use the bathrooms and locker rooms that match their gender identity (for others, see here). The case involved Dallas High School, in Dallas, Oregon, which created an inclusive bathroom policy after one of its transgender students request permission to use the boys' facilities, consistent with his gender identity. But parents of other male students at the school sued, alleging their boys suffered "embarrassment, humiliation, anxiety, intimidation, fear, apprehension and stress produced by using the restroom with students of the opposite sex."

The court rejected the parents' claim that permitting transgender students in the locker room compromised their children's privacy. In addition to lack of precedent to support the idea that the constitution protects a fundamental right not to share restrooms or locker rooms with transgender students, the court noted that such a right, if it existed, is not infringed. Students are not compelled to use multi-user facilities; anyone with a privacy concern is permitted to a private single-user facility. The court also rejected the parent's claim that the school's inclusive policy violated Title IX by creating a hostile environment for their children. Finally, it concluded that the parent's requested relief -- revoking the policy and excluding the transgender boy from the boys' restrooms and locker rooms -- would itself violate Title IX, since this would "punish transgender students for their gender nonconformity and constitute a form of sex stereotyping."

The parents also included the U.S. Department of Education and the U.S. Justice Department as defendants in the case. They alleged that the agencies' joint 2016 guidance document, that interpreted Title IX to require trans-inclusive bathrooms, was improperly promulgated. That guidance has been subsequently revoked, however, so it was easy for the court to dismiss this claim for lack of standing: there is no apparent connection between the procedural violation they allege and the school's decision to implement an inclusive policy.

Decision: Parents for Privacy v. Dallas Sch. Dist. No. 2., 2018 WL 3550267 (D. Or. July 24, 2018). News of the decision was also reported here.

And in related news, the Third Circuit released its decision affirming a lower court's decision in a similar case in Pennsylvania.  The lower court had refused to grant a preliminary injunction that would have prevented the school from accommodating transgender students' use of facilities that match their gender identities, and the appellate court agreed with the court's "well-reasoned" opinion.  That decision is: Doe v Boyertown Area Sch. Dist., 2018 WL 3581456 (3d Cir. July 26, 2018), 

Transgender Student Wins Decision in Locker Room Case

Another federal court has sided with transgender students and ruled that Title IX and the Constitution's Equal Protection Clause protect their right to use sex-specific facilities that correspond to their gender identity. The plaintiff in this case, who goes by his initials M.A.B., sued the board of education in Talbot County, Maryland, over his high school's decision to prohibit him from using the boys' locker room to change for gym class. M.A.B. was required instead to use gender neutral bathrooms for this purpose, even though that facility does not have lockers, showers, or benches, and is located remotely from the boys' locker room. The school board moved to dismiss his Title IX and Equal Protection claims on grounds that they fail to state a claim covered by either law, but the court has denied that motion, paving the way for litigation to continue.

The court applied the sex-stereotyping theory of sex discrimination to conclude that the school board violated Title IX, reasoning that M.A.B. is excluded from the locker room because his transgender status contravenes stereotypes about sex and gender. Addressing his constitutional claim, the court applied intermediate scrutiny to the school board's policy because it singles out M.A.B. for reasons related to sex and because transgender individuals are a quasi-suspect class. The court determined that the exclusion policy did not survive intermediate scrutiny because it is not substantially related to the school board's interest in protecting student's privacy, since the locker room has partitioned stalls for changing clothes, and toilets with stalls and doors. A student who wants privacy can elect to take advantage of these features without experiencing the same kind of stigma and psychological harm that M.A.B. faces when he is mandated to use single-user facilities.

In the same decision that the court denied the school board's motion to dismiss, the court also considered M.A.B.'s motion for a preliminary injunction that would allow him to use the locker room while the litigation is pending.  The court denied this motion on the grounds that P.I. remedy requires a showing of irreparable harm, which M.A.B. cannot satisfy because he is not currently not taking physical education or competing in sports.  Though he will take P.E. next school year, the court seemed confident that it would issue its decision on the merits by then, which would render the preliminary injunction unnecessary. If the court is wrong and the case is still open when M.A.B. starts school in the fall, he can refile his motion for a preliminary injunction at that point.

Court Rejects Parents' Arguments That Privacy Requires Transgender Students' Exclusion from Bathrooms

Township High School District Number 211 in Palatine, Illinois, is again in the news for recent developments in its legal struggle over transgender-inclusive locker rooms and bathrooms. In 2015, the Department of Education found that the school district's policy of excluding a transgender girl from the girls' locker room violated Title IX, a precedent-setting decision at the time. In response, the school district had to enter into a resolution agreement that permitted the student's access to the locker room.

Subsequently, the school district came under fire again, this time, in the form of a lawsuit filed by an association called "Students and Parents for Privacy." The association sued the district, arguing that its agreement to permit a transgender girl to use the girls' locker room violated cisgender-female students' constitutional right to privacy and constituted sex discrimination against them, in violation of Title IX. The association also moved for a preliminary injunction that would require the school to bar transgender students from gender-appropriate facilities while the litigation was pending. After a magistrate judge recommended that the district court deny this motion, the association tried to get the district court to reject the magistrate's recommendation, but last week the district court decided that it to would deny the association's preliminary injunction.  

In particular, the district court rejected the association's argument that the magistrate's opinion conflicted with old case law in the Seventh Circuit (a jurisdiction that includes Illinois) that narrowly construes the meaning of sex in cases applying the sex-discrimination provisions in Title VII to transgender plaintiffs. The district court points out that very recent Seventh Circuit decisions (that we have blogged about here and here) make clear that the appellate court no longer embraces the same narrow view. Instead, the district court is bound to follow the appellate court's updated position that "federal protections against sex discrimination are substantially broader than based on only on genitalia and chromosomes."

Moreover, the court reasoned, the association is not entitled to a preliminary injunction because they will suffer no irreparable harm by the fact that the high school will continue to operate under a policy that permits transgender students to use facilities according to their gender identity. Any student who fears their privacy would be impaired by encountering a transgender student in the bathroom or locker room simply has to access existing and available single-user facilities. That these facilities might be more remotely located did not constitute serious irreparable harm in the court's view.

School District Settles Transgender Bathroom Case for $800,000

The school board in Kenosha, Wisconsin, voted to settle its litigation with its former student, Ash Whitaker, who sued the school after it refused to permit his access to the boys' locker room and restrooms because he is a transgender male. Whitaker successfully obtained a preliminary injunction that granted the facilities access he was seeking while his litigation was pending; the decision of the district court in favor on this matter was affirmed by the Seventh Circuit Court of Appeals in one of the most important decisions to date on the rights of transgender students under Title IX and the 14th Amendment's Equal Protection Clause.

Soon thereafter, however, Whitaker graduated from high school and the focus of the case changed from what the school was required to do for him going forward to whether the school was liable for damages because of the discrimination that had already occurred. This aspect of the litigation will now end as well as a result of the $800,000 settlement voted on by the school board this week. $650,000 of that amount will reportedly cover Whitaker's attorneys' fees and costs. School officials told the press that the settlement was not an admission of liability for discrimination but a strategy to avoid the costs of ongoing litigation. Whitaker told the press he was happy to have the litigation behind him so that he could focus on being a college student.

Inequities in scheduling and facilities

Last week's episode of Only a Game included a story on inequities in scheduling and facilities on the three stories you should know segment of the show.

It was Boston Globe writer Shira Springer's story and was born out of Victoria Azarenka's complaints during the first week of (the recently concluded) Wimbledon that women were not getting the good courts and the good times. Nothing much came of Azarenka's public calling out of the All England Club--shocking. But Springer did a good job of turning the moment into a conversation about how female athletes are treated.

My initial response was something in the realm of "no kidding" and "is this really what we should be talking about?". I mean the Women's US Open was held at one of 45's golf courses last weekend because the USGA would not move the event way back in October when news of his sexual assaults was revealed to the world. And then USGA officials would not/could not publicly answer a question about the organization's position on sexual assault!

But then I remembered that I am a feminist scholar of sports and that ranking all the ills is not really in keeping with my philosophy and desired intentions. I also opened up my email to find a Google alert about facilities inequities in Oregon (high school softball/baseball fields). Also, inequities in scheduling and facilities do not exist in a vacuum; they are an indicator of the culture of the sport's governing body.

Springer's segment focuses on professional and Olympic female athletes and it is an important conversation given that, as she herself notes, much of the conversation about inequality at this level has been directed at pay inequities. And as much as I appreciate Springer's segment and the potential attention it will generate, this is not new. Just two years ago, we were watching a premier international soccer tournament played on artificial turf. The 2015 Women's World Cup participants and their supporters protested the

Host Bill Curtis made a side comment about Boston University when Springer mentioned the very inequitable scheduling of women's hockey in Sochi in the last Olympics. He noted that BU has the same issue. It was almost a under-his-breath comment but it's important to note. BU established a women's hockey team in 2005. The team has been successful fairly quickly. They play Walter Brown Arena, built in 1971, which seats approximately 3,800 fans. The men play in Agganis Arena, which opened in 2005 (such a coincidence!), and seats about 6,100 fans. I have not been to either arena so I cannot comment on the level of upkeep or general comfort and accommodations. But on its face, this does not look like a good situation. It reminds me of the montage in Love and Basketball that compares the experiences at USC of Q and Monica.

Because Walter Brown is a facility that the women do not have to share unlike most of their DI counterparts, maybe they think this is a good deal. But maybe they look at the treatment that men receive and think that having their own arena is not nearly enough. The point is that the women of US National Team are used to be being put in substandard arenas and in non-primetime slots. So even if they know it is unfair and even if they hate it, it was likely not a surprise when they encountered the same situation in Sochi.

Female athletes who come up through the American intercollegiate system are accustomed to differential treatment. Professionals like Victoria Azarenka who came up through a non-scholastic junior sports system do not have the same experience. This is not to say that athletes who come up in club systems around the world are treated equitably (in another sport movie reference: Bend It Like Beckham). I am sure almost every professional female athlete can share stories about gender inequality. But in a sport like tennis--or basically just tennis--where pay equity is less and less of an issue, players might be a little surprised that there are other gender issues to tackle.

And heading back to where Title IX is a factor: interscholastic and intercollegiate sports are still failing miserably in their obligations for equal treatment. We wrote an article about this five years ago. We could easily write another today with just examples from the past few years.Trickle down or trickle up change--it does not matter in what direction or who is doing the influencing, but remedies to these inequities will only come with changes to attitudes about women's sports and female athletes.

Illinois Parents Fail to Block Transgender Student's Use of Locker Room; Judge in Texas Reaffirms Nationwide Injunction Against OCR's Transgender Guidance

Federal courts all over the country are hearing challenges to the Department of Education's position that Title IX prohibits educational institutions from discriminating against transgender students and excluding them from single-sex facilities and programs that they seek to access in a manner consistent with their gender identity.  This post will cover two key developments in separate cases that occurred this week. 

In one case, a federal magistrate judge in Illinois rejected efforts of parents to prohibit Township High School District from accommodating a transgender student's right to use the girls' locker room, which is consistent with her female gender identity. The school district developed an inclusive policy pursuant to an agreement with the Department of Education that resolved the agency's finding that excluding the transgender student violated her rights under Title IX. The group of parents sought an injunction against the policy by challenging the Department of Education's guidance document that contains its interpretation of Title IX's application to transgender rights. It also alleged that the school's inclusive locker room policy violated their children's constitutional right to privacy, but failed to convince the magistrate to offer relief on either ground. As a result, the school district's policy that permits the transgender student to use the girls' locker room remains in effect.  

As to the Title IX issues in particular, the magistrate -- whose role is to make a recommendation to the federal district court judge -- determined that the parents did not have the requisite "likelihood of success on the merits" necessary for such an injunction to issue.  The magistrate noted that many courts are adopting broader understanding of sex discrimination as defined by Title IX and other civil rights laws to encompass discrimination targeting transgender individuals. Even the Seventh Circuit, which has jurisdiction over the federal courts in Illinois, may be poised to overrule its very influential 1984 decision that foreclosed Title VII's protection to transgender plaintiffs. (The appellate court very recently vacated a panel decision that declined to overrule that earlier case, signaling the possibility that the full court will do so when it rehears the case en banc.) Thus, the magistrate concluded, it is not apparent that the plaintiffs are likely to prevail on their argument that the Department of Education contravened Title IX when it promulgated the transgender guidance or when it entered into the resolution agreement with the school district that incorporates the agency's interpretation in the guidance. Similarly, it is unlikely to prevail on its argument that the agency should have used notice and comment procedures to promulgate the transgender guidance, since it appears to be an interpretation of existing requirements under Title IX and its regulations, rather than a new obligation.

The magistrate acknowledged the ongoing litigation in Texas that is also challenging the validity of the Department's guidance about Title IX's application to transgender rights.  Like the decision from Ohio that we blogged about recently, the magistrate in this case determined that the Texas federal court judge's issuance of a nationwide injunction against the guidance has any bearing on this case. 

Coincidentally, however, the second decision of note this week pertains to that same injunction. The federal judge in Texas rejected arguments by the Department of Education to narrow the scope of that injunction to apply only in the 13 states that are plaintiffs in the Texas case, and reasserted that the Department of Education is “enjoined from using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of [its August 21, 2016] Order." 

The two decisions this week are certainly in conflict, as the nationwide injunction is premised on the judge's acceptance of the argument that the transgender guidance is most likely not an appropriate interpretation of Title IX, while the decision in Illinois suggests that it likely is. This fundamental inconsistency could be resolved through the process of initials appeals, in the event that the circuit courts eventually agree to consistent answer to this question.  Alternatively, however, any circuit split that develops would increase the likelihood of the Supreme Court tackling this matter once and for all.  

Meanwhile, however, as recent decisions from other district courts have demonstrated, other courts seem skeptical of the power of one federal judge to affect litigation elsewhere. As the Township High School District demonstrates, that injunction is not interrupting enforcement of the guidance in earlier cases. Nor, as evidenced by the recent decisions in Ohio and Wisconsin decision, does it appear to interrupt efforts of transgender students themselves to assert a right to bathroom usage under Title IX. 

Federal Court Enjoins Title IX Transgender Guidance

This week, a federal court in Texas issued a preliminary injunction that bars the Department of Education from enforcing the interpretation of Title IX that is contained in its May 2016 guidance regarding transgender students. In that guidance, the DoE affirmed that discrimination on the basis of sex includes discrimination on the basis of gender identity and transgender status, and that as a result, institutions receiving federal funding must permit transgender students to access sex-specific facilities and programs that correspond to their gender identities rather than their birth-assigned sex.

The state of Texas is the lead plaintiff in a lawsuit that is challenging the DoE's interpretation. Yesterday, the federal district court granted the plaintiff's motion for a preliminary injunction, which means that while litigation is pending, the Department cannot insist that school districts and universities refrain from discriminating against transgender students, or revoke the federal funding from those who do.  The standard that the courts use to determine if a preliminary injunction is appropriate primarily considers whether the plaintiffs are likely to prevail on the merits, and that the balance of harm tips in their favor.  In addition, the court had to address several threshold issues regarding the justiciability of the case including the standing of the plaintiffs and the ripeness of the claim.

Substantive invalidity.  One key issue on which the court thinks the plaintiffs will likely prevail is their argument that existing regulation does not support the agency's position contained in the guidance.  The court disagreed with the agency's position that the regulatory ban on "sex" discrimination, subject to exceptions for sex-segregated facilities like bathrooms and dormitories, includes discriminating against transgender individuals by denying them access to facilities that are consistent with their gender identities. According to the court, "[i]t cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DoE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth."

I think that even if conceded, that argument misses the point. It is possible to view transgender exclusion as sex-based treatment in the sense that a transgender individual's [anatomical, birth-assigned] sex is being viewed in relation to their gender identity.  Individuals whose sex and gender identities align can use the bathroom that matches their gender identity, while individuals whose sex do not align cannot the bathroom that matches their gender identity. Sex, even in its "plain meaning" attributed by the court, is still a factor being taken into account. An interpretation that this manner of discrimination is already prohibited by the regulations is therefore a permissible one for the agency to make.

Procedural invalidity. The court also concluded that the plaintiffs will likely prevail on its argument that the DoE should have used statutorily prescribed notice and comment procedures. When an agency promulgates a binding regulation, it must publish the rule in essentially draft form, get public input, and address the public's comments in the final version of the rule. However, when an agency issues sub-regulatory guidance that merely clarifies or interprets an existing regulation, it may legally bypass the notice-and-comment procedural requirements.

The court disputed DoE's classification of the guidance as an interpretive rule, concluding that it "de facto regulation" that should have gone through notice and comment, a conclusion that turns on the court's sense that the guidance was meant to be binding and not discretionary. But a key characteristic of an interpretive rule is whether, without it, the agency would have the legal basis on which to bring an enforcement action to the same effect. Here, existing regulations prohibit treating individuals differently on the basis of sex, subject to the exception for sex-segregated facilities like bathrooms and dormitories. Even if the guidance had never been published, the DoE could have advanced this position in the context of an enforcement action. In fact, it did that very thing.  I think the court missed an opportunity to discuss an important characteristic of an interpretive rule, the fact of an already-existing basis for enforcement. 

Ripeness. One other thing that surprised me about the court's opinion was the standard that it used to determine that the case was ripe. Here, the plaintiffs are asking the court to throw out the Department's guidance before it has been enforced against any funding recipient. According to a Supreme Court decision called Abbott Labs, such pre-enforcement review is only appropriate when the questions raised by the case are fit for review and that withholding of review creates a hardship for the plaintiff.  But notwithstanding this two-part test, the Texas court seems only concerned about fitness and not about hardship. In Abbott Labs, the drug manufacturer-plaintiffs challenging a USDA labeling requirement satisfied the hardship requirement because there were high costs associated both with compliance and with non-compliance. Are the schools in Texas and other plaintiff states in a similar double bind?  The cost of compliance is just to let transgender kids use the bathroom that matches their gender identity.  The percentage of students who are transgender is exceedingly small, maybe 1% or less.  For schools that do have transgender students in their population, it is possible to comply with the guidance without incurring any cost at all, which could not be said for the drug manufacturers in Abbott Labs.  Even the cost of non-compliance is distinguishable from that in Abbott Labs, where the Court was not only concerned with the possibility of incurring fines for mislabeled drugs, but also the particular cost to a drug manufacturer's reputation that come from being subject to an enforcement action.  This extra consideration should be necessary, since the penalties that result from the enforcement action itself are always ripe for review. And it doesn't seem to be present here.  In light of the court's omission of a key component of the ripeness test, I am guessing this issue will be an important one on appeal.

Does Michigan State's Women-Only Study Lounge Violate Title IX?

The Washington Post reported this week on the controversial decision by Michigan State University to lift the women-only designation that had formerly applied to a study lounge in the student union. Though the timing coincides with public critique of the lounge by a professor from the University of Michigan, MSU contends that it had already decided to remove the women-only designation as a means to comply with Title IX. Female and male MSU students alike have reportedly responded to the decision by petitioning the university to reinstate the women-only space.

Putting aside the question of whether a women only lounge is a helpful and/or necessary, I have to say that I agree with MSU's assessment that a study lounge designated for women only is a violation of Title IX.  I furthermore disagree with the university's apparent belief that adding a comparable lounge for men -- an idea that MSU rejected -- would have cured the legal problem.

Title IX by its terms bans sex discrimination in federally funded institutions. Technically, the only time it is permissible to treat students differently on the basis of sex is when there is an exception written in to the statute or into the regulations. . In terms of facilities, these areas include housing, toilets, bathrooms and housing facilities, where "separate but equal" treatment is permissible (34 C.F.R. 106.32 & 106.33). In terms of programs, it is permissible for colleges and universities to separate men and women in athletics, some physical education classes that involve contact sports, and choruses. Id. at 106.34.  Admissions of private undergrad institutions is not covered by Title IX which is how women's colleges can legally exist. But this exemption does not pertain to public schools like Michigan State, and even if it did, it does not give rise to a right to impose differential treatment on male and female students once they are admitted. Id. at 106.15. Elementary and secondary schools have a little more leeway to offer single-sex education in some circumstances, but this is not replicated for higher education outside the context of admissions. Id. at 106.34. Finally, there is a provision that allows a university to administer scholarships and awards that are designated for only one sex, so long as it "otherwise makes available reasonable opportunities for similar [opportunities] for members of the other sex."  Id. at 106.37.

And that's it. Those are the exceptions to the default rule of equal treatment. So in the absence of a provision governing women's-only or gender-segregated study lounges, they are technically not allowed.

That said, students are justified in insisting on space to study that is free from interruption by other students who want to ask them out -- what appears to be the chief concern of petitioning students at MSU.  One way to accomplish this would be for MSU to designate the lounge as a "quiet" lounge and prohibit all people from interrupting studiers, whether to ask them out or for other reasons that would presumably be equally intrusive. Or MSU could permit students to sign out the lounge (or parts of it) for use by study groups, which would permit a self-assembled group of female students to use the lounge at their designated time. A study lounge within a women's dormitory or on an all-women's floor would also be OK under the exception for housing.  Finally, I'd argue that it would also be permissible to designate space for a gender-focused student group, such as the Society of Women Engineers.  Though men could not legally be excluded from the lounge if they really wanted to make a big deal about it, a sign on the door declaring the space to be "SWE headquarters" would probably work to divert most male engineers to another lounge as a matter of respect and/or disinterest.

Some Thoughts on Friday's Dear Colleague Letter Re: Transgender Students

On Friday the Department of Education and the Department of Justice jointly released a significant guidance document in the form of a "Dear Colleague" letter that addresses schools' responsibilities under Title IX to avoid discrimination against transgender students. The central premise of the guidance letter is, "The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX....This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity." Thus, transgender students must be permitted to access bathrooms, locker rooms, athletic opportunities, single-sex classes, single-sex schools, or any other sex-specific activity or requirement according to their gender identity even if their school records or other documentations say otherwise. Schools must also protect transgender students from harassment and respect their preferred names and pronouns.

Here are some of my thoughts about the Dear Colleague Letter:

The effect of guidance. A guidance document like the Dear Colleague Letter does not create new legal requirements. In fact, if you have been following the position that the Department of Education has taken in recent enforcement actions, you'll find the content of this guidance document to be familiar.  The effect of Dear Colleague Letters is to raise awareness about compliance obligations so that schools can proactively adjust their conduct to avoid such enforcement actions.

The Letter's scope. The Letter is directed at "schools" without specifying whether it meant to include or exclude institutions of higher education. In my mind, there is no legal basis for having a different definition of sex discrimination apply to K-12 than to higher education, so it is arguable that everything in the Letter applies to higher education with equal force.  Yet the Departments' failure to expressly address colleges and universities may create arguments to the contrary as well. This might be particularly controversial in the aspect of athletics, where prevailing NCAA policy imposes hormone-based requirements on transgender athletes wishing to compete according to their gender identities (though the Letter appears to endorse the policy in a footnote).

Federal government overreach? On the radio this morning I heard some state-level politicians complaining that the federal government lacks the right to regulate local schools in this manner. Indeed, the Constitution prohibits the federal government from directly regulating matters of such state/local concern, but when the federal government spends its own money, it may impose conditions on those who receive such funds. A local school district that doesn't want to comply with Title IX as interpreted by the Dear Colleague Letter is not required to do so.  All it has to do is forgo federal funding, and it has no obligation under Title IX whatsoever. On the other hand, if it agrees to accept the benefits of federal funding, it must accept the responsibilities that come with it.

Confirmation of identity. According to the Letter, all that is required to confirm a transgender student's gender identity is notification from a parent. It is appropriate that the Departments expressly denounce any specific medical diagnosis or intervention as a prerequisite for a schools' obligation to recognize the student's gender identity.  Unfortunately, however, a "parental notification" standard will leave some transgender students (those without parental support) without the right to access facilities and programs according to their gender identities -- though I understand why the Departments would not want to force schools to take sides within a divided family. Hopefully the government's express validation of transgender students' identities will help nudge society in a similar direction and likely reduce the number of unsupportive parents with time.

What about nonbinary students? A colleague of mine asked me what the Letter means for transgender students who don't identity as either male or female, and I thought I'd post my thoughts on that question here as well. Such "nonbinary" students are not expressly mentioned in the Letter, but it seems clear to me that their rights to be protected from harassment and discrimination in general are the same as transgender students whose gender identity is specifically male or female.  As for single-sex facilities and programs, however, there is not a clear answer.  Presumably such a student would be treated like a member of their birth-assigned sex that is reflected in school records, since that is schools' default mode of operation. But those students would not have access to facilities and programs for the other sex, however, since they cannot claim to have a similar gender identity to the students in that gender category. Theoretically, the Letter could have addressed the rights of nonbinary students by requiring schools to create third category for every program or facility that is segregated by sex, though the Departments likely (and reasonably) considered such an approach infeasible. But the omission of such a requirement doesn't mean schools can't try to accommodate nonbinary students as a matter of "best practice." For one, they could permit such students to use facilities or access programs that they feel most comfortable, whether that be consistent with their birth-assigned sex or the other sex category.  For another, they could eliminate unnecessary and gratuitous sex classifications (color-coded graduation robes is an example that readily comes to mind), since the fewer places in school where sex designations matter, the more inclusive the school environment is to all students regardless of gender identity.

Oregon High School Softball Team Sues District Over Unequal Facilities

School officials in Lake Oswego, Oregon, allegedly told the high school girls' softball team that they would have to win a state championship before the school would upgrade their facilities to match the level of quality that the boys' baseball team receives.  In a lawsuit challenging this disparity in treatment under Title IX, the softball player-plaintiffs strike back, pointing out the unfairness of holding them to such a high standard while refusing to improve the level of support for the team.

In the lawsuit, the softball players allege that their facilities at a nearby junior high school consist of a dirt field with poor drainage that often requires them to cancel games due to poor conditions.  They also lack designated locker room and basic amenities like water fountains.  Meanwhile the boys' baseball team plays in a stadium at the high school that is decked out with artificial turf, locker rooms, pitching machines, an enclosed batting area, a press box, sound systems, water fountains, and well-maintained bathrooms.

The school district claims that improvements to the softball field are being made, though if this is their only defense, that would not be enough to dismiss a Title IX challenge. Title IX requires that schools provide equal treatment to their boys' and girls' athletics programs overall.  It is not necessary to treat all sports equally or provide similar treatment to the boys and girls teams in the same (or similar) sport. Theoretically, a school court argue that (for example) a world-class swimming facility for the girls, if it had one, swim team offsets the similar level of luxury that the boys' baseball team enjoys.  However, intra-sport or similar-sport comparisons usually end up being good indicators of overall disparity in support for the boys and girls programs in the aggregate. 

North Carolina Law Causes Title IX Violation, Lawsuit Says

A lawsuit filed over the weekend presents constitutional and other challenges to North Carolina's new law, HB 2, which prohibits municipalities from including sexual orientation and gender identity in local ordinances banning discrimination and restricting access by transgender individuals to single-sex facilities. Though constitutional arguments are at the heart of the case, the lawsuit also includes a Title IX challenge to the provision of HB 2 that restricts transgender individuals to using the bathroom or locker room that matches the sex designation on their birth certificate, even if this conflicts with their gender identity and expression. Specifically, the lawsuit names the University of North Carolina system as defendant, and includes as a plaintiffs a transgender man who is a student at UNC-Greensboro and another who is an employee at UNC-Chapel Hill.  These plaintiffs argue that the under HB 2, they are prohibited from access to men's restrooms and locker rooms, and UNC violates Title IX as a result.

This argument could provide a federal court with the opportunity to consider the Department of Education's interpretation of Title IX as it pertains to transgender rights in single-sex facilities, and decide how much weight to give the agency's position that excluding a transgender person from gender-consonant usage is a form of sex discrimination that is prohibited under Title IX.  The agency has expressed this position most recently in the settlement of discrimination case against the school district in Palatine, Illinois last fall.  If the court agreed with the agency's interpretation, it could limit HB 2's application to public educational institution due to the conflict with federal law.

It is also possible that the court could agree with the Department of Education's interpretation but still see no conflict between the laws.  While HB 2 is mandatory, Title IX is not.  It only applies to schools that choose to accept federal funding. The case could be resolved in such a way that HB 2 compliance renders North Carolina schools ineligible for federal funding, a ruling that would not affect the legal status of HB 2 directly -- but would certainly generate political pressure for its repeal.

Illinois School District Settles With OCR in Locker Room Case

The school district in Palatine, Illinois has agreed to a settlement with the Department of Education that will resolve the agency's findings made last month that the high school's exclusion of a transgender student from girls' locker room violates Title IX. Specifically, the school district has agreed to allow the student in question, who identifies as female, to change in the the girls' locker with the other girls, on the condition that she use private changing stations located within the locker room. The district must also install privacy curtains and provide additional accommodations for any student who desire enhanced privacy.

The Department of Education notes that this case is the first time it has found discrimination against a transgender student to violate Title IX. Notably, however, it is not requiring the school district to adopt a general policy of inclusion but merely to provide access to this particular student who had already agreed to (and in fact, requested) the opportunity to use a private changing station within the girls locker room. It appears to me that the agency was giving up the opportunity to compel a broader remedy for the sake of compromise; yet despite the settlement's narrow focus (and that fact that no settlement would have jeopardized the school district's federal funding) the school district's decision to endorse the agreement was reportedly not an easy one. The fact that a three-hour meeting was required to endorse the settlement unfortunately demonstrates considerable resistance to transgender inclusion. It was heartening, however, to read that many students supported the deal.

Duluth Coaches and Students File Title IX Complaint

A group of four former student athletes, one current student athlete, and three former coaches have filed a complaint with the Department of Education's Office for Civil Rights challenging widespread sex discrimination within the athletic department at the University of Minnesota-Duluth. The former coaches -- Shannon Miller, Jen Banford, and Annette Wiles -- are also plaintiffs in a lawsuit against the university challenging sex- and sexual orientation- discrimination that resulted in the termination or forced resignation of their jobs.  But the OCR complaint alleges even more widespread sex discrimination that affects students and coaches alike.

Allegations in the complaint include the following:

• women's ice hockey team has a smaller operating budget (by over $270K) than its male counterpart
• women's softball team was forced to have tryouts in order to pad the number of female athletes reported for gender equity purposes, then the department made the coach cut those extra players for budgetary reasons 
• some female athletes were fraudulently reported as participants in multiple sports
• men's basketball team is allowed to carry redshirt players, while the women's team is not
• the department has terminated female coaches, depriving female athletes the opportunity to receive coaching of high quality
• the department provides men's teams coach with resources like vehicles, a restaurant expense account, and support staff, that are not provided to the women's coaches on equal terms. 
• the men's basketball team has a locker room five times larger and of superior quality than the locker room for women's team
• the men's hockey team is provided with resources like snacks, meals, travel funds to tournaments that were not provided in equal measure to the women's team. 
• the women's basketball team had fewer games and travel opportunities than the men's team; the women's team had to fundraise for travel and the men were not
• men's teams had bigger budgets for recruiting, more equipment and uniforms, and medical equipment denied to women's teams
• female athletes have fewer opportunities for scholarships, such as funding to enroll in special May term, J-term, and summer semesters that male athletes receive
• the department does less promotion for female teams than its male counterparts, among other examples, it tweeted about men's hockey 309 times compared to 69 tweets about women's hockey

OCR will now consider whether to open an investigation (it likely will).  If the allegations are validated, it is very hard to imagine how they could not constitute violations of Title IX. While it is not necessarily a violation to have a disparity in treatment between men's and women's teams in the same sport, it is a violation when the athletic department's pattern is to select the women's team for inferior treatment all or most of the time.

Banning Transgender Girl from Girls' Locker Room Violates Title IX, OCR Says

At the close of its investigation of Township High School District 211 in Illinois, the Department of Education's Office for Civil Rights concluded yesterday that the district's exclusion of a transgender girl from the girls' locker room facilities at the high school violates Title IX. 

The student in question was assigned a male sex at birth but has identified as female from a young age and in middle school began a public transition to female with her parents' support. The school district has been supportive of her in many ways; OCR notes that the high school records identify her as female, that the staff and classmates use her preferred name and female pronouns, and that she has access to girls' restrooms and plays on girls' athletics teams. Yet for the last two years, district administrators have prohibited her from changing in the various girls' locker rooms in the building, even though the student is willing and in fact prefers a private space (a restroom stall) within the girls' locker room. Instead, administrators offered to make available a separate changing area that is adjacent to the girls locker room. The student objected to this arrangement on the grounds that being relegated to an adjacent area actually draws more attention to the fact she is singled out for exclusion.  She instead changes in another area made available, which is a locked single-stall restroom elsewhere in the building. As a result of its inconvenient location and the fact that she must find a staff member to unlock it for her, the student has been late to physical education class a number of times, and is sometimes unable to access uniforms needed for class.  She has also been excluded from informal camaraderie with her teammates that sometimes occurs in the girls' athletics locker room (which is different from the P.E. locker room) prior to practice.  She was also excluded from the pool locker room. 

OCR's conclusion in this case is that excluding the transgender student from the girls' locker room impairs her educational opportunities and does so on the basis of sex in violation of Title IX.  It noted that the school could remedy this violation and protect the privacy interests of its students at the same time by installing privacy curtains in the various locker rooms -- something that it had indeed already done in the girls' P.E. locker room. Such privacy enhancements would serve the interests of all students, including the transgender student in question, who has expressed a willingness and preference for using them, as well as any other student who would feel uncomfortable changing in front of other girls. The agency has given the school district 30 days to reach a voluntary agreement along these lines, in lieu of bringing a formal enforcement action. 

This is not the first time OCR has expressed an opinion on transgender students' gender-consonant usage of single-sex facilities.  In resolution agreements with other school districts, the agency has taken the position that transgender students should be treated in accordance with their gender identity, including when it comes to bathrooms and restrooms.  This case is unique, however, for its particular focus on locker rooms and the extensive treatment of that issue. 

Federal Court Rejects Title IX's Application to Transgender Restroom Case

Last month, a federal district court in Pennsylvania rejected claims that the University of Pittsburgh violated Title IX when it denied a transgender male student access to men's locker rooms and restrooms on campus. The court rejected the argument that discrimination on the basis of one's transgender status is incorporated into the scope of sex discrimination prohibited by Title IX and instead limited the meaning of sex discrimination to discrimination on the basis of one's biological sex. In reaching this decision, the court primarily relies on Ulane v. Eastern Airlines, an employment discrimination from the 1980s in which the Seventh Circuit court of appeals reached a similar conclusion about the scope of Title VII.  It also uses a similar mode of reasoning that the Ulane court employed, which was to emphasize that Congress did not have transgender students on its mind when it passed Title IX in the 1970s.  Though the court recognized that that definition of sex discrimination has been expanded in one particular way -- to include discrimination on the basis of sex stereotypes -- it concluded that was not the nature of discrimination alleged in this case because the plaintiff, whose natal sex is female, did not experience harassment or discrimination on the basis of his failure to dress in stereotypically feminine clothing.  Rather, the nature of the discrimination he faced was being treated differently from other men because he is a transgender man instead of a cisgender man.

Even though I think the court was right that this case did not present a sex stereotyping claim, by recognizing that such a claim would have been actionable, the court concedes that cases like Ulane are out of date and an inappropriate foundation on which to bases conclusions about the meaning of sex. If Title IX includes discrimination on the basis of one's gender presentation, as the Supreme Court has itself endorsed, it is not accurate to say that the law only prohibits discrimination on the basis of biological sex.  Several federal agencies and (so far only) one federal court have used that reasoning as a starting point for an even broader interpretation of sex discrimination that would have, had the court endorsed it here, provided a remedy for the plaintiff in this case.  For example, the EEOC recognized that discriminating against someone because of their transgender gender identity is a form of discrimination because of sex.  The Department of Justice and the Department of Education's Office for Civil Rights have endorsed this view as well, as evidence by the fact that they have brought enforcement actions against school districts in support of transgender students challenging their exclusion from sex-specific spaces (see also) and also filed briefs in support of students raising those arguments in court. Additionally, OCR's most recent guidance document about sexual violence also contained the sentence, "Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation."

Unless or until the administration's more expansive definition of sex discrimination catches on with the judicial branch, educational institutions may have to contend with two standards for Title IX compliance: one that the courts apply in lawsuits brought by individual plaintiffs, and one that the government applies in its own enforcement actions. A school that excludes transgender students from sex-specific activities and facilities that accord with their gender identities may have less to fear from a student-initiated lawsuit, but could still be on the hook with OCR.  Such inconsistencies are not unheard of in the Title IX context.  For example, courts premise institutional liability for sexual harassment on a finding of deliberate indifference, while OCR has imposed a stricter and more specific standard.  As a practical matter, that means universities like Pittsburgh can continue to restrict transgender students single-sex spaces with little concern for injunctions or damages imposed by the court, but potentially risk being forced to change their policies in the context of an enforcement action by OCR. 

Decision: Johnston v. University of Pittsburgh, 2015 WL 1497753 (W.D. Pa. Mar. 31, 2015).

Litigation Roundup

Two separate Title IX lawsuits have been filed recently, one challenging disparities in athletic opportunities at a high school, while the other alleges a college mishandled her complaint of having been raped by a fellow student.

• A parent in Englewood, Tennessee, is suing the McMinn County Board of Education on behalf of his daughter, a freshman at McMinn Central High School who participates in softball and volleyball.  He alleges that disparities in the athletic opportunities for girls violate Title IX. In particular, he alleges that the softball team has to pay itself for field maintenance and equipment, amenities that are provided to boys' teams from the school budget.  Also, the school does not provide the softball team with a lighted field, which limits the team's scheduling options for practices and games. The complaint also notes that the boys' baseball team is provided superior quality locker rooms, dugouts, field house, storage facility, playing surface, and warm up and practice areas. The lawsuit seeks an injunction against continued discrimination and damages to compensate the plaintiff for out-of-pocket expenses and other costs. 

• A former student is suing the West Virginia School of Osteopathic Medicine, claiming that she was forced to withdraw after she reported to school officials that she had been raped by a fellow student at an off-campus party.  She alleges that school officials responded to her report by advising her to leave school, since they could not guarantee her safety. Additionally, she claims that they did not administer a drug test, leaving her on her own to discover that her assailant had drugged her with diazepam, that they failed to protect her from further contact with him, that they threatened to sue her if she spoke out, and that they breached her confidentiality. Moreover, she alleges that she experienced a sexually hostile environment after a school employee who was dating the alleged, disclosed details of the incident to the campus community.  Her complaint demands damages to compensate her for emotional distress and other costs, as well as an injunction that would require the school to do a better job responding to victims in the future by implementing drug tests and protecting them from harassment and retaliation.

And in another story, a Title IX lawsuit was partially dismissed.

• The Bibb County School District in Georgia prevailed in dismissing part of a student's Title IX claim seeking damages for a 2012 rape she suffered at the hands of a gang of fellow students who had orchestrated a plan to attack her in a school restroom.  The student alleged that two prior instances of gang rape at the school, one in 2008 and another in 2002, should have put the school on notice of the threat, one of the required elements for institutional liability to attach in cases of sexual harassment and sexual violence among peers. But the court ruled that the two earlier gang rapes could not serve as notice because they were sufficiently different, having been conducted by different gangs than the one that raped the plaintiff. In imposing this requirement for gang-specific notice, the court rejected plaintiff's argument that the school's notice of a gang rape problem in general should suffice.  The plaintiff's other argument, that the school also responded to her own rape with deliberate indifference, continues to be litigated.  The remaining claim could potentially result in damages attributable to the school's indifferent response, which itself could have been the source of some independent emotional distress. However, the dismissed claim was likely considerably more valuable to the plaintiff, as it would have made the school liable for damages arising from the rape itself.   Doe v. Bibb County Sch. Dist., 2015 WL 403320 (M.D. Ga.  Jan. 28, 2015).