Today, the U.S. Supreme Court agreed to hear an appeal from a Virginia school board seeking to prevent a high school student from using the boys' bathroom. In April, the U.S. Court of Appeals for the 4th Circuit gave deference to the federal government's position that Title IX, the federal law prohibiting discrimination "on the basis of sex" in public schools, protects the rights of transgender students to use school bathrooms that align with their gender identity. The court ordered the district to allow the student to use the boys' restrooms. But in August, the Supreme Court voted to temporarily prevent the student from using the boys' restroom, pending the appeal of the case to the high court. Today's action extends that order, meaning the student will not be allowed to use the boys' restrooms while the case proceeds.
Today's decision follows an active week of cases involving the rights of transgender students and the obligations and duties of school districts to transgender students.
On October 19, a federal district court judge for the Northern District of Texas issued an order clarifying the scope of a preliminary injunction previously granted. The injunction was initially issued in August in response to a challenge, filed by 13 states, that the Dear Colleague Letter (DCL) authored by the U.S. Department of Justice and the U.S. Department of Education in May was illegally issued without the proper notice and comment period.
In his clarification, the Texas judge stated his intent to apply the injunction nationwide, and not just to the 13 states that challenged the federal guidance. “It is clear from Supreme Court and Fifth Circuit precedent that this Court has the power to issue a nationwide injunction where appropriate,” he wrote. The judge indicated that his order should not otherwise affect the missions of federal agencies to enforce civil rights laws like sex discrimination, and that the injunction was limited in scope to the issue of access to intimate facilities. The injunction is currently being appealed to the 5th Circuit Court of Appeals and OSBA will continue to provide updates as the case progresses.
Also on October 19, a federal magistrate judge recommended against a preliminary injunction sought by a group of parents and students to block a school district in Illinois from permitting transgender students to use the restrooms or locker rooms that correspond to their gender identity. The magistrate concluded that, given the “trend toward a more expansive understanding of sex in Title IX,” the parents and students had failed to show a likelihood of success on the merits of their claim that the U.S. Department of Education’s interpretation of Title IX was not in accordance with law or entitled to deference.
The magistrate’s opinion is merely a recommendation and still must be approved by a federal district judge.
OSBA continues to encourage districts to work with individual students requesting accommodations on a case-by-case basis through interaction with the student and the district’s board counsel. For additional information, please contact OSBA’s division of legal services. For specific information about the impact of these decisions on your district, please contact your district’s legal counsel.