Thursday, April 13, 2017
Fourth Circuit Vacates the Order Protecting Gavin Grimm, But Casts Him As a Modern Human Rights Leader
The Fourth Circuit has vacated the injunction that was securing Gavin Grimm's access to facilities consistent with his gender in Gloucester County Schools. Less than a year ago, it seemed Grimm's case was set to open doors for others across the country. He had the federal government and an appellate federal court on his side. While Grimm's bravery and persistence has had positive impacts, the federal government and courts took two steps forward just to take two, if not three, steps backward. At least two judges on the Fourth Circuit lamented this result, but cast Grimm as the victory in the broader scheme of things. In a concurrence to the order vacating Grimm's injunction, Judges Davis and Floyd wrote:
G.G., then a fifteen-year-old transgender boy, addressed the Gloucester County School Board on November 11, 2014, to explain why he was not a danger to other students. He explained that he had used the boys’ bathroom in public places throughout Gloucester County and had never had a confrontation. He explained that he is a person worthy of dignity and privacy. He explained why it is humiliating to be segregated from the general population. He knew, intuitively, what the law has in recent decades acknowledged: the perpetuation of stereotypes is one of many forms of invidious discrimination. And so he hoped that his heartfelt explanation would help the powerful adults in his community come to understand what his adolescent peers already did. G.G. clearly and eloquently attested that he was not a predator, but a boy, despite the fact that he did not conform to some people’s idea about who is a boy.
Regrettably, a majority of the School Board was unpersuaded. And so we come to this moment. High school graduation looms and, by this court’s order vacating the preliminary injunction, G.G.’s banishment from the boys’ restroom becomes an enduring feature of his high school experience. Would that courtesies extended to others had been extended to G.G.
Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals—Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few—who refused to accept quietly the injustices that were perpetuated against them. It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed. These individuals looked to the federal courts to vindicate their claims to human dignity, but as the names listed above make clear, the judiciary’s response has been decidedly mixed. Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, “the arc of the moral universe is long, but it bends toward justice.” G.G.’s journey is delayed but not finished.
G.G.’s case is about much more than bathrooms. It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity. His case is part of a larger movement that is redefining and broadening the scope of civil and human rights so that they extend to a vulnerable group that has traditionally been unrecognized, unrepresented, and unprotected.
G.G.’s plight has shown us the inequities that arise when the government organizes society by outdated constructs like biological sex and gender. Fortunately, the law eventually catches up to the lived facts of people; indeed, the record shows that the Commonwealth of Virginia has now recorded a birth certificate for G.G. that designates his sex as male.
G.G.’s lawsuit also has demonstrated that some entities will not protect the rights of others unless compelled to do so. Today, hatred, intolerance, and discrimination persist — and are sometimes even promoted —but by challenging unjust policies rooted in invidious discrimination, G.G. takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail, and that the core dignity of every one of our brothers and sisters is respected by lawmakers and others who wield power over their lives.
G.G. is and will be famous, and justifiably so. But he is not “famous” in the hollowed-out Hollywood sense of the term. He is famous for the reasons celebrated by the renowned Palestinian-American poet Naomi Shehab Nye, in her extraordinary poem, Famous. Despite his youth and the formidable power of those arrayed against him at every stage of these proceedings, “[he] never forgot what [he] could do.”
Tuesday, February 28, 2017
Mack Beggs, 17, won the Texas state girls’ wrestling title on Saturday culminating in an undefeated season for the young man. Unfortunately, this was not the division Beggs wanted to compete in – a sentiment shared by his competitors and other members of the community. Beggs was born female, but according to the Star-Telegram, his parents recall Beggs identifying as male as early as age 3. After a long wait, Beggs was finally able to begin transitioning a little more than a year ago with the use of testosterone therapy. Naturally, the treatment has promoted substantial growth in muscle mass and physical strength.
There was overwhelming community support behind Beggs’s desire to wrestle in the boys’ division, but the University Interscholastic League, the state’s governing body for public school athletics, prohibits gender integrated athletics. The Dallas Morning News reports that in 2016, 95% of Texas Superintendents voted in favor of amending the UIL’s constitution to require student athletes compete as the gender identified on their birth certificate.
The expansion of sex-separated teams in public school wrestling has been a recent development. I was on a wrestling team in Tennessee from 2005-2008, and I had the opportunity to wrestle several females over that course of time. My female opponents were never conclusively less capable than the male opponents. Importantly, these opponents were females both on their birth certificate and in identity. Mack Beggs is not. Beggs testosterone therapy and male identity create actual differences between him and his female competitors. Since we have allowed female wrestlers to compete with males as a matter of practice before sex-separated teams, why not allow them to compete now?
It’s likely the UIL policy was promulgated to protect female competitors from competitors labeled male on their birth certificate, but incidentally the policy has created a situation where female competitors are forced to wrestle a male. Beggs may not be male according to his birth certificate, but according to his strength, muscle mass, and undefeated season – many would concede that Beggs is male, thus creating the problem the UIL wanted to avoid.
Under the Obama administration’s policy guidance, Beggs likely could have filed an administrative complaint with the Office for Civil Rights, alleging discrimination under Title IX. The Trump administration, however, recently reversed that policy position. The Supreme Court will presumably pick sides later this year in its pending case, Grimm v. Glouchester County, which addresses transgender students’ access to bathrooms consistent with their gender.
But even if the Court sides with the new administration and concludes that sex discrimination only means biological sex or the sex indicated on one’s birth certificate, the UIL can still find a workable solution. If the UIL’s real concern is male domination of the female wresting division, it could adopt a policy whereby females can compete in the male league, but still prohibit males from competing in the female league.
While this sex-based inequity would certainly present a prima facie case of discrimination, it would likely pass judicial scrutiny. In order to survive scrutiny, the state must show an important government interest for the discrimination and that the chosen means are substantially related. The important interest would be an effort to redress past discrimination against females. The means would be substantially related to this interest by maximizing opportunity for females. The minimal effect this policy change would have on males further increases the likelihood of surviving scrutiny.
On the other hand, the current justifications for prohibiting girls from competing on boy’s teams are marginal at best. Common arguments for sex-separated athletics focus on safety of the female competitor, but sex is not determinative of the risk you take in a sport—particularly in wrestling. When your competitors are determined by weight division, the organizational structure precludes a situation where a male’s natural difference in size imposes greater risk on his female opponent. Even if the average male within a given weight class is stronger than the average female, it is two individual students who take the mat, not students who represent the mean characteristics of their sex. A 6’3, 140 lbs., male with relatively little muscle mass may face off against a 5’7, 140 lbs. female who is all muscle. Or an overweight and weak 5’4, 170 lbs., male may face off against a lean 5’10, 170 lbs. female. I have seen these types of match-ups on the mat before, and they were no different than had two males of those characteristics competed.
This policy is not far from the preferred one that the National College Athletics Associate already uses. The NCAA policy requires students similarly situated to Beggs compete in the male league. Under NCAA policy, transgender female-to-male students who undergo testosterone treatment therapy like Beggs must compete in the men’s league. Conversely, male-to-female athletes cannot compete on a women’s team without at least one year of testosterone suppression therapy. For transgender students who do not receive hormone therapy, female-to-male students are allowed to compete on men’s or women’s teams while male-to-female students are barred from women’s teams. These policies appropriately accommodate transgender athletes while balancing the interest in safety of the competitors. Under the NCAA policy, a girl – not a boy - may have actually won the girls’ state title, and Mack Beggs could have won the boys’ tournament.
Jonathon Reynolds is a law student at the University of South Carolina.
Monday, February 27, 2017
Now that the Trump Administration has explicitly disavowed guidance to schools on treatment of transgender students, it is worthwhile to revisit exactly what lawyers for the Justice Department and the Education Department wrote way, way back, last May, in a now-distant era.
Last year’s guidance – which is accessible on the Web site of the Education Department – addressed the meaning of the nondiscrimination language contained in Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq. The law states:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
This kind of nondiscrimination language in other contexts, most notably employment, has been interpreted by courts as prohibiting differential treatment based on gender identity. (The law includes several exceptions for specific institutions and organizations, like the Boy Scouts.)
If the prohibition has this same meaning in education, then it bars schools, colleges and universities receiving federal money from treating transgender students and other students of the same gender identity differently. For example, to require a transgender student to use a locker room, rest room, or other school facility designated for use by students of a different gender identity would run afoul of Title IX.
Now, I mentioned that courts have found gender identity-based discrimination to constitute sex discrimination “in other contexts,” and that is because the cases cited by the two departments in the guidance did not involve Title IX – with one exception. As discussed in more detail earlier in another post, the Supreme Court will hear oral argument next month in Gloucester County School Board v. G.G., and that case is the exception.
Gloucester County does not directly or expressly raise the question of the meaning of the nondiscrimination language in Title IX, although the Court could resolve that issue for practical purposes. Rather, the Court ostensibly will rule on the extent to which the Obama Administration’s guidance should benefit from judicial deference, as it did in the opinion of a federal court of appeal. The Fourth Circuit cited the guidance in issuing an injunction requiring that a transgender boy be allowed to use the boys’ restroom at his school.
The question of deference is an interesting one, given that the guidance was not the product of formal notice and comment proceedings. Perhaps that is the reason that Sean Spicer, the White House’s press secretary, spoke about the Trump Administration’s view of the guidance as he did. In responding to questions from reporters about the Administration’s policy, Spicer spoke of “several areas of concern, both legal and procedural,” involving the guidance. He did not offer further detail on what those areas were.
Significantly, the Obama Administration’s guidance did not and does not “add requirements to applicable law, but provide[d] information and examples to inform recipients” of Federal funds about how the two departments will evaluate “whether covered entities are complying with their legal obligations.” So the obligation of schools to respect the rights of their students has not changed from whatever it was before.
But the likelihood of a federal effort to protect those rights has.
Wednesday, February 15, 2017
A new story at the Daily Beast tells Gavin Grimm's story in a way that no other I have seen thus far does. It is not really about the legal issues, but about the personal journey of Gavin and his mother to stand up. It is about her evolution and Gavin finding his own mature and civil voice while controversy swirls around them:
“He’s supposed to be thinking about senior skip day,” she told The Daily Beast. “That’s not what he’s thinking about. He’s thinking, ‘I’m going to the Supreme Court so they can discuss my genitals and bathroom use some more.’"
It is a surreal position for a mother to be in, which makes Deirdre’s grace under fire even more otherworldly. The hostility directed at her son used to get under her skin. (“I would hear these nasty comments and it would make me mad and I would want to lash back out at these people,” Deirdre said.)
But now, she’s trying to follow Gavin’s advice: Ignore the blatant opponents of transgender equality and “set a positive example and educate in a positive way” for everyone else instead.
. . .
Taking the high road is a strategy that Deirdre says she learned from Gavin who, at that fateful December 2014 school board meeting, countered his adult critics with a heartfelt plea that could go down in the history books: “I’m just a human. I’m just a boy. Please consider my rights when you make your decision.”
Education law cases pose a different set of ethical and personal issues than most other cases. A few years ago, a mother told me the story of her daughter's long term suspension from public school and assignment to alternative school. I told her that the facts, as she relayed them to me, were the ones that I had been imaging for some time. They did not involve dramatic events, but simply ostracizing a high-achieving student for everyday misbehavior--misbehavior that students cannot really resist because it is part of growing up and being social. These facts drove to the forefront the irrationality of zero tolerance. I saw them as a vehicle through which I believed a lower court, and potentially the Supreme Court, could put teeth to a substantive due process review of school discipline.
I told the mother all of that. I also told her that filing this lawsuit might not be something she wanted to do. Her daughter's education was ongoing. She lived in a small community with a single high school. Even if she sued the district and won, the remedy might not come for some time. But at the moment she sued, her child might face subtle and or explicit retaliation. Her daughter would certainly draw a lot of attention, which is not necessarily the best thing for a teenage student. Her educational career might be worse off. Ultimately, the family decided to suffer the injustice quietly and enroll the daughter in another school system. I never second guessed that. I simply said I am happy to help whatever they decided.
This is what makes Gavin Grimm's story so courageous. He and his mother had far more privacy on the line than a suspended or disciplined student, which is the typical type of case we see in court, and they pressed forward anyway. From what I can tell, they pressed forward with full knowledge. Gavin Grimm and his mother seem to be standing up because they understand this is about far more than just him. He is willing to make the type of sacrifice that Oliver Brown, Linda Brown (daughter), and countless others during school desegregation made so that other children might go to integrated schools. Their sacrifice was real. As History.com indicates:
After the lawsuits were filed, a number of plaintiffs lost their jobs, as did members of their families, and other plaintiffs had their credit cut off. The retaliation was arguably most severe in South Carolina, where whites burned down the house and church of a particularly energized plaintiff, the Reverend Joseph A. DeLaine, and reportedly fired gunshots at him one night. DeLaine ended up fleeing the state, never to return. Judge Waring was also forced out. Facing death threats, he retired from the bench in 1952 and moved to New York City.
Three cheers for Gavin Grimm and his mother, Deirdre.
Tuesday, February 14, 2017
Trans Students' Bathroom Rights: Will DeVos & Sessions Follow Candidate Trump's Common Sense? Not Likely by Diane Klein
On Tuesday, February 7, 2017, the Senate confirmed Betsy "But What About The Grizzlies?" DeVos as Secretary of Education; Jeff "Elizabeth Warren and The Ghost of Coretta Scott King Are Bullying Me" Sessions was confirmed and sworn in the next day; and by week's end, the Sessions-led DOJ had reversed course on an important Title IX case relating to the rights of transgender students.
This may be the first (and only!) time I wish Trump's Cabinet would take their lead from candidate Trump's public statements on an issue. Unfortunately, recent events suggest the opposite: that DeVos and Sessions will be targeting one of our nation's most vulnerable groups, in a needless and cruel policy offered as a sop to the most deplorable, ignorant part of the electorate.
Nearly a year ago, on February 22, 2016, the Charlotte (NC) City Council voted 7-4 to expand an existing nondiscrimination ordinance to cover LGBT people. The ordinance, which would have gone into effect April 1, 2016, included a provision permitting people to use the bathroom of the gender with which they identify.
On March 23, 2016, North Carolina, in a response that makes the Pearsall Plan look progressive and open-minded, enacted HB2, undoing Charlotte's ordinance, and requiring use of bathrooms corresponding to a person's "biological sex," defined in the bill as "The physical conditions [sic] of being male or female, which is stated on a person's birth certificate." Under HB2, schools were specifically prohibited from allowing students to use any other bathroom than the one matching birth-certificate sex. It stated, "Local boards of education shall require every multiple occupancy bathroom or changing facility...designated for student use to be designated for and used only by students based on their biological sex."
HB2 became hugely controversial, and prompted boycotts of North Carolina by various businesses (like PayPal) and organizations. (For example, the NCAA has pulled its championship games out of the state.) It was in the context of that business impact that candidate Trump responded to queries about the bill. When, on April 20, 2016, Matt Lauer of the "Today" show asked Trump about the issue, Trump pointed to "the strife and the economic punishment" suffered by North Carolina because of HB2. He suggested, admittedly vaguely, that the state simply "Leave it the way it is," meaning, presumably, continue to allow transgender Americans to use the bathroom associated with the gender with which they identify. Should Caitlyn Jenner, one of the best-known trans women in America, visit Trump Tower, he intimated, she could use the restroom of her choice.
While Trump's response was hardly a resounding affirmation of trans rights, he responded as many fair-minded Americans do to this entirely manufactured issue: in essence, who cares what bathroom someone uses? And what sort of people do care?
A closer look makes clear that the real intent of these "bathroom bills" is not to protect anyone. Opponents of transgender bathroom access have a long and sordid history of casting trans people as sexual predators instead of what they actually are: the frequent victims of hate crimes, including sexual crimes. A person who intends to carry out an assault in a restroom will hardly be deterred by the gender marker on the door. There is obviously something else going on.
That something else is a frontal assault on transgender identity and existence. While the benefits of such bills are non-existent, the harmful effects on trans kids in school are staggering. Requiring trans kids in schools to use the bathroom associated with the sex on the student's birth certificate (which generally cannot be changed until adulthood) may not seem like a big deal. But stigmatizing a child who wishes to present in a gender different from their assigned gender is a way to deter that child from outwardly transitioning at all (in other words, a trans girl identified at birth as a boy will be forced to continue to present as a boy, and use the boys' restroom), on pain of being set up for abuse, or even driven out of school. A law requiring that bathroom use be dictated by the sex assigned at birth will increase the trans student's discomfort (including physical discomfort) and marginalization at school, inviting state-sanctioned bullying, and even violence - without making anyone safer.
Under a bill like HB2, a trans student presenting in their self-defined gender faces an impossible dilemma in using any school restroom. Entering the boys' restroom while presenting as a girl, as the law would require of a trans girl, would invite abuse, while using the girls' restroom despite possessing male external genitalia would create a paralyzing fear of discovery. A trans student who was not "out" to their school and classmates would in fact be required to out him- or herself, in order to avoid breaking the law by using the prohibited bathroom. It is degrading, humiliating and cruel to draw attention to a student in this way, and force them to choose between outing themselves and breaking the law, and it is hardly better to put teachers or school personnel in a position to police student restroom use. It is indecent to require teachers to think like child molesters or peeping Toms, more concerned about what is in a student's pants than what's in their head.
A day or so after Trump's reasonable, if uninspiring, remarks, Fox News' Sean Hannity attempted to corral Trump back into the right-wing "state's rights" fold, by re-interpreting Trump's ambiguous comment that "I think that local communities and states should make the decision." Trump, it's safe to say, was probably unaware that HB2 emerged precisely from a conflict between a community (Charlotte) determined to practice nondiscrimination, and a state legislature that felt otherwise. Because, again, I just don't think he cares that much. "If it's bad for business, why do it?," seems to pretty much sum up his view.
With controversy roiling over HB2, the Obama Administration sent out the "Dear Colleague Letter on Transgender Students" on May 13, 2016. This guidance document, which went out over the signatures of Catherine Lhamon, Assistant Secretary for Civil Rights (DOE) and Vanita Gupta, Principal Assistant Attorney General for Civil Rights (DOJ), required schools, upon notice from a student, parent, or guardian, to treat students in a way "consistent with the student's gender identity," regardless of the student's sex or gender in previous records. The letter further stated, "A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns." Crucially, the letter states, "When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity."
These new guidelines were promulgated under Title IX, a 1972 civil rights law that provides, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." It is sweeping in scope, covering 16,500 local school districts in all 50 states, as well as 7,000 postsecondary institutions.
Although the "Dear Colleague" letter set new nationwide standards, the substantive policy it imposed was hardly novel. The Los Angeles Unified School District (LAUSD), the second-largest district in the nation with 640,000 students (more populous than Vermont though only 1/10 the size), implemented a policy protecting the rights of transgender and gender non-conforming students in 2005 (updated in 2011). This policy, copied by other districts, has operated entirely without incident.
Maybe that's why, when candidate Trump addressed it, he rightly saw it as a non-issue.
But on Friday, February 10, 2017, the DOJ quietly withdrew from the case, using language suggesting they may drop the appeal entirely. That leaves the nationwide injunction in place, even as another case involving the Title IX Dear Colleague letter is set to be heard by the Supreme Court March 28, 2017. Despite hopeful language from some trans rights groups, without the threat of DOE enforcement, the Dear Colleague letter is more like a dead letter.
On October 28, 2016, just a few weeks after Judge O'Connor clarified his injunction, the U.S. Supreme Court granted cert. in G.G. (Gavin Grimm) v. Gloucester County School Board, another case involving transgender student access to bathrooms. The Fourth Circuit found in favor of the student, employing Auer deference to the Title IX Dear Colleague letter in interpreting Title IX to cover gender identity, and 34 C.F.R. 106.33, the "comparable facilities" requirement for single-sex school facilities, to require giving trans students access to bathrooms consistent with their gender identity.
Those of us who care about the civil and human rights of trans students everywhere will be watching both cases attentively, hoping for the best but prepared for the worst from the DeVos DOE and the Sessions DOJ. The grizzly bears are the least of our worries.
Monday, December 19, 2016
Appellate Court Denies School District's Claim That It Would Suffer Irreparable Harm by Granting Equal Restroom Access to Transgender Student
The Sixth Circuit Court of Appeals has ruled in favor of a transgender student's access to facilities consistent with her gender identity, bring the number of favorable circuit courts to two. In Dodds v. U.S. Department of Education, the court refused to read too much into the Supreme Court's recent stay in Grimm v. Gloucester:
The crux of this case is whether transgender students are entitled to access restrooms for their identified gender rather than their biological gender at birth. To demonstrate a likelihood of success on the merits, the movant must show, “at a minimum, serious questions going to the merits.” Mich. Coal., 945 F.2d at 153 (internal citation omitted). “It is not enough that the chance of success on the merits be better than negligible.” Nken, 556 U.S. at 435 (citation omitted). “[M]ore than a possibility of relief is required.” Id. While the Supreme Court has stayed a similar case from another Circuit, see G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 136 S. Ct. 2442 (Mem), that fact does not satisfy the test required of us here, and does nothing more than show a possibility of relief, which is not enough to grant a stay.
To be clear, however, this court did not rule on the merits of the issue of whether Title IX requires admission to the restroom. As an appeal of a preliminary junction, the court focused, appropriately so, on the irreparable harm the district would purported suffer, as well as that of the girl. It wrote:
the record establishes that Doe, a vulnerable eleven year old with special needs, will suffer irreparable harm if prohibited from using the girls’ restroom. Her special education class, which previously used the nurse’s restroom to accommodate Doe, has started using the sex-separate multi-user restrooms now that Doe can use the girls’ restrooms. Highland’s exclusion of Doe from the girls’ restrooms has already had substantial and immediate adverse effects on the daily life and well-being of an eleven-year-old child (i.e. multiple suicide attempts prior to entry of the injunction). These are not distant or speculative injuries—staying the injunction would disrupt the significant improvement in Doe’s health and well-being that has resulted from the injunction, further confuse a young girl with special needs who would no longer be allowed to use the girls’ restroom, and subject her to further irreparable harm.
Friday, October 21, 2016
Courts Dividing Over Transgender Students' Rights, Creating Problems of Authority and Predicatability
Earlier this summer, a federal district court judge in Texas rejected that the Department of Education's position that Title IX protects transgender students' access to bathrooms consistent with their gender identity. That opinion was in contrast to the Fourth Circuit Court of Appeals, which had upheld the Department's interpretation in Grimm v. Glouchester this past spring. This week the divide and stakes only deepened. This week the district court judge in Texas issued another opinion to clarify or expand his first one. He indicated that his injunction against the Department prevented it from enforcing its Title IX position not only in regard to the school district in question, not only in the state of Texas, but nationwide.
Interestingly, a federal magistrate judge in Illinois decided a case this week in which some students had tried to block other transgender students' access to restrooms consistent with their gender identity. They had argued that such access would infringe on the privacy rights of other students. The magistrate judge rejected this challenge, siding instead with the rights of transgender students and the Department of Education's position.
The various cases, particularly the nationwide injunction by the Texas court, raise serious issues of jurisdiction, conflicts, and enforce ability. If the Fourth Circuit, which covers South Carolina up through West Virginia and Maryland, has sided with the Department's position, can a Texas court enjoin the Department from carrying out that position? One would think not. Circuit splits happen all the time and one circuit does not impose its will on another. On the other hand, I imagine the court could hold the Department in contempt for violating its court order, even though that order might be beyond the trial court's authority. This problem explains why the Department of Justice immediately appealed the order yesterday and presumably the case might have some sort of expedited appealed. On the merits, such an appeal might be hard to expedite, but a court could deal with jurisdictional questions more easily through a temporary stay or other measures.
Monday, August 22, 2016
Federal Court Blocks Department of Education's Transgender Rules, Increasing the Odds of the Supreme Court Taking Up the Issue
A federal district court in the Northern District of Texas just blocked the Obama Administration from enforcing its interpretation that Title IX ensures transgender students the right to use bathroom facilities consistent with their gender. On Sunday, in Texas v. United States, the district court wrote:
The Court finds that Plaintiffs have shown a likelihood of success on the merits because: (1) Defendants bypassed the notice and comment process required by the APA; (2) Title IX and § 106.33’s text is not ambiguous; and (3) Defendants are not entitled to agency deference under Auer v. Robbins, 519 U.S. 452 (1997).
The court further explained:
Thursday, July 21, 2016
New Transgender Discrimination Case Against Wisconsin School District Could Be Quick Repeat of Grimm or Present Several Wrinkles
Ashton Whitaker, A transgender high school student in Wisconsin, has filed suit against Kenosha School District. He alleges that the district has denied him access to male restrooms consistent with his gender and continues to refer to him by the female name on his birth certificate. He argues that this treatment violates Title IX and the U.S. Constitution. His factual and legal claims are nearly identical to those in Grimm v. Gloucester, in which the Fourth Circuit earlier this year sided with the student. Whitaker's case could be a simple repeat or move the law and courts in new directions.
Will the school district contest the question of whether Title IX protects transgender students in access to restrooms or will it simply contest Whitaker's version of the facts? If it concedes the facts and only contests the law, Grimm is the only case on point at the moment. Thus, the district court would a) rule quickly in favor of Whitaker, b) affirmatively counter the reasoning in Grimm or c) take the route the 6th Circuit did in the gay marriage cases, holding that until the Supreme Court or its own circuit speaks, it will rule in favor of the district. The same options would presumably exist for the Seventh Circuit Court of Appeals in reviewing the district court.
Option A would create two circuits firmly aligned in favor of transgender students and make the grant of cert in Grimm or Whitaker's case less likely (Grimm is currently pending before the Supreme Court). Option B or C would eventually create a circuit split and, even if the Court denies cert in Grimm, make a grant of cert in Whitaker's case more likely a couple of years from now.
Also interesting in Whitaker's case will be questions of qualified immunity. The district officials may argue that regardless of what the law requires moving forward that the law was unclear at the time they acted. This is after all new law. This was attempted in several cases dealing with sexual orientation claims over the past decade or two. On the other hand, the Office for Civil Rights has held a firm position for longer on this issue. And in Title IX cases, the Court has tended to rely heavily on OCR policy guidance to provide the necessary notice of illegality to school districts.
One thing, however, is clear: Whitaker is represented by exceptional counsel. Relman, Dane & Colfax has taken his case. The firm has been nationally recognized for its civil rights work and victories for decades.
Friday, July 8, 2016
Texas, Joined By Eleven States, Seeks Nationwide Injunction To Block DOE's Transgender Anti-discrimination Policy
Texas Attorney General Ken Paxton is seeking a nationwide preliminary injunction to stop the enforcement of the Department of Education's Dear Colleague letter to schools directing them not to discriminate against transgender students, particularly in students' choice of bathrooms. Paxton, along with Alabama, Arizona, Georgia, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin, applied for the injunction on Tuesday asking the Northern District of Texas to enjoin the DOE's transgender-inclusive policy nationwide because the policy applies all of the nation's public schools. To persuade the district court that it has to the power to enjoin the policy nationwide, Paxton is relying on the Fifth Circuit's ruling last year granting injunctive relief that halted enforcement of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which provided for legal presence for illegal immigrants who were parents of citizens or lawful permanent residents. See Texas v. United States, 809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25, 2015), cert. granted, 136 S. Ct. 906 (2016). The states' preliminary injunction motion is here and the original report at the Texas Tribune is here.
Tuesday, June 28, 2016
Charlotte-Mecklenburg Schools (CMS) announced a new regulation last week advising principals this fall to honor students' choices about their gender identity in restrooms, locker rooms, yearbooks, and graduation ceremonies, school officials told the Charlotte Observer. CMS said that the new guidance follows the Fourth Circuit's holding in G.G. v. Gloucester County Sch. Bd. (see our coverage here) and is not intended to defy North Carolina's law HB2, which, among other things, requires students to use public school restrooms and locker rooms based on the gender on their birth certificates. In G.G., the Fourth Circuit held that the U.S. Dept. of Education's interpretation that Title IX applies to transgender students was entitled to deference in light of the ambiguity of the meaning of "sex" in the statute. The new CMS regulation will require schools to identify and address students according to their preferred identity and will eliminate "gender-based activities that have no educational purpose, such as having a girls’ and boys’ line to go to recess."The Charlotte-Observer's story is here.
And speaking of G.G. v. Gloucester County Sch. Bd., on remand from the Fourth Circuit, last week the district court granted the preliminary injunction to allow the plaintiff to use the boys' restroom at Gloucester High School. The district court did not extend that access to any other school facilities, such as locker rooms, because the plaintiff's suit only sought bathroom access. The June 23 order of the Eastern District of Virginia is here.
Tuesday, May 24, 2016
A new lawsuit against against a school district just outside Cincinnati, Ohio, raises several interesting factual and legal claims. Unfortunately, they are bound up in incredible tragedy. According to the complaint, Emilie Olsen, a middle school student, committed suicide following an extended period of regular and egregious harassment and bullying. The introduction to the complaint states:
Emilie, an Asian-American, was continually bullied, harassed, assaulted, battered, and discriminated against in school, and further bullied and harassed online, because of her race, national origin, and gender, as well as her association with Caucasian students, and her perceived sexual orientation and practices. Emilie and her parents tried to end the bullying and repeatedly pleaded with certain Defendants for help. Defendants failed to stop the bullying, and it continued. Consequently, Emilie suffered severe anguish, distress, and depression, and ultimately committed suicide. Sadly, Emilie’s case was not an outlier; other Fairfield students also suffered unrelenting bullying and discrimination, and two of those students attempted suicide months before Emilie’s death. Certain of the Defendants, likewise, failed to intervene on behalf of these students. This action seeks damages and seeks to reform the Fairfield City Public Schools’ policies and practices for responding to bullying, harassment, assault, battery, and discrimination.
The complaint frames these facts as violations of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments, Substantive Due Process, and Equal Protection. It also raises Section 1983 claims, alleging a pattern and practice of violating these aforementioned rights, along with a host of state law claims.
The first issue that jumps out at me is one of mixed motive. The complaint details a long list of incidents, statements, and altercations, some of which relate to sex, some of which relate to sexual orientation, and some of which relate to race and ethnicity. Some incidents do not facially fit into any category of discrimination and could be either general bullying or circumstantially related to the aforementioned discrimination. General bullying would not violate any federal statutory protection, although it might fall into a substantive due process claim if sufficiently egregious and ignored.
Bullying need not, of course, fit into any single prohibited category to be actionable, but it does need to fit in some category. The "cleanest" cases are those where the bullying is strictly about race or gender, as the fact finder does not need to work as hard to discern a prohibited motivation or form of discrimination. This makes the narrative of discrimination easier to build. In the instant case, race and ethnicity seems to be a dominant aspect of the harassment, but sex and potentially sexual orientation seem to play a significant role as well. The court, however, will either need to sort these types of discrimination out or recognize the inter-sectional nature that discrimination often takes but which courts sometimes fail to appreciate. Here, it may very well be the case that this student's gender, sexual orientation, race and ethnicity all intersected to create a particularly virulent form of discrimination. Life, quite simply, does not always fit easily into the neat boxes the law would proscribe.
Second, this case raises the same issues always at play in harassment cases: what exactly did the district know and, if they knew something, did they do enough to address it. Title VI and Title IX law is pretty permissive on both questions. Teacher knowledge is not enough. Agents of the school (principals, administrators, etc) must have knowledge of the harassment that amounts to prohibited discrimination and fail to reasonably respond. Failing to respond means more than just failing to stop the discrimination. Here the district, according to the complaint, was repeatedly put on notice on numerous occasions of what occurred. The parents, however, seem to have been kept in the dark about a lot of things, including incidents that the district may have learned of itself and the district did or did not take to address them. For the most part, the complaint alleges that the district did nothing to respond, which very well may be true, but one could fairly assume the district will point to a number of things it did, in fact, do. The determinative question will be whether whatever the district did was enough.
The lawsuit, interestingly, goes beyond these basic notice and response questions of statutory claims, raising constitutional claims that potentially require a broader inquiry into whether the district actively put the student in danger or harbored some impermissible biases or neglect of its own. I will, however, reserve that discussion for later.
Friday, May 13, 2016
The U.S. Department's of Justice and Education have released joint policy guidance regarding the rights of transgender students under Title. The guidance does not mince words or over-complicate the issue, but simply states that the "Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity." This emphatic position was no doubt helped by the recent Fourth Circuit decision in Grimm v. Gloucester County School Board. As the guidance explains:
The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination. The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.
A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.
Tuesday, April 19, 2016
Gavin Grimm Secures Monumental Victory for LGBTQ Community for Equal Access to Bathrooms and Facilities
Gavin Grimm just secured an enormous victory for himself, and the entire LGBTQ community, in his fight to gain equal access to the restrooms and other facilities at his public school in Gloucester, Virginia. After losing before his school board and a federal district court, he has now won in the Fourth Circuit Court of Appeals. For those who do not follow this blog or the issue in general, equal access to facilities for transgender students has been a topic of hot debate at the local and state level across the country. See here and here. Regardless, this was a case of first impression and reached a result that emphatically secures rights for students in the southeast and mid-Atlantic states, and will likely have an impact on other circuits as they take up similar cases.
For the non-lawyers looking for clear answers, the opinion in G.G. v. Gloucestor Country may appear confusing, as it includes some technical procedural and analytical issues. I offer this simplified explanation of the case. First, Title IX, a federal statute, prohibits discrimination based on sex in schools. Second, Title IX does not specifically address gender identity, but the U.S. Department of Education has interpreted the statute to transgender individuals: “When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.” Thus, the key issues in the case were whether the meaning of "sex" in the statute was ambiguous and, if so, whether the Department's interpretation of the term was reasonable.
In a 2-1 decision, the Fourth Circuit held that while "sex" clearly refers to males and females, how Congress intended that term to apply to intersex or transgender students is not clear. When confronted with such an ambiguity, a court should defer to an agency's reasonable interpretation. Thus, that is exactly what the Fourth Circuit did, ruling in favor of Gavin Grimm. The case is now on its way back to the district court, which must now apply the correct standard and determine what remedy to afford Mr. Grimm.
For those legal scholars looking for more, the full opinion is here. Or see below for the most pertinent discussion by the court:
Tuesday, March 29, 2016
Yesterday, plaintiffs sued North Carolina Governor Pat McCrory, challenging the constitutionality of a newly-enacted House Bill 2 that prohibits cities and counties from adopting their own anti-discrimination ordinances and instead established a state anti-discrimination that does not include transgender persons as a protected class. In the complaint, Carcaño v. McCrory, the plaintiffs allege that H.B. 2 violates the Equal Protection and Due Process clauses because it discriminates on the basis of sex and sexual orientation and is an invasion of privacy for transgender people. The plaintiffs further allege that the law violates Title IX by discriminating against students and school employees on the basis of sex by requiring transgender persons to use bathrooms by the gender on their birth certificates, rather than their gender identity. The lawsuit was filed in the U.S. District Court for the Middle District of North Carolina, with the ACLU, Lambda Legal, and the ACLU of North Carolina representing the plaintiffs. Today, North Carolina Attorney General Roy Cooper announced that his office will not defend the constitutionality of H.B. 2. Cooper has opposed the state's efforts in other anti-LGBT measures such as the state's same-sex marriage provisions, saying last month that the state "has gone off the tracks." The ACLU of North Carolina applauded Cooper's stance that House Bill 2, saying in a statement that the law is "not only incompatible with the state's constitutional and legal obligations but also our shared values as North Carolinians. We’re grateful the Attorney General stands on the on the right side of history with the many cities, states, businesses and individuals who have come out against this harmful measure." The complaint is here.
Thursday, March 24, 2016
North Carolina Blocks Transgender Persons' Access To Public Facilities That Reflect Their Gender Identities
The state legislative trend continues to require transgender persons to use public facilities that align with the biological gender on their birth certificates rather than their gender identity. We've noted several state legislative efforts in this direction, most recently about Tennessee's law creating a lock-in exclusion for transgender students because another state law prohibited the state from recognizing sex changes on birth certificates. Yesterday, North Carolina Governor Pat McCrory signed the Public Facilities Privacy & Security Act (H.B. 2), which requires that multiple-occupancy bathrooms and locker rooms in public schools and government buildings be used by persons only according to their biological sex. The new law also blocks local governments from enacting ordinances to allow transgender people to use public bathrooms that match their gender identities -- targeting Charlotte's anti-discrimination ordinance passed last month that allowed people to choose restrooms corresponding to their gender identity. When the Charlotte ordinance was passed, Gov. McCrory commented that the law was a threat to public safety, so the swift response by the N.C. General Assembly was expected. Responding to H.B. 2's passage, Chris Brook, Legal Director of the ACLU of North Carolina, stated on the ACLU website, "We are disappointed that Governor McCrory did not do right by North Carolina’s families, communities, and businesses by vetoing this horribly discriminatory bill, but this will not be the last word." More on the new law here.
Wednesday, March 16, 2016
Madison County School Board in Alabama has finally brought an end to the six year saga regarding its failure to protect a middle school student from sexual harassment and later its active role in using the student as “bait” to catch the harasser, which led to her being raped. Media outlets report that the board greed to a settlement with the victim this week.
As discussed here in 2014, a teacher's aide at Sparkman Middle School convinced a 14-year-old female special needs student to enter a bathroom with another student with a history of sexual and violent misconduct. The aid told her teachers would be present in the bathroom to catch the male student “in the act” of sexual misconduct before anything happened. This was all purportedly in service of a school official’s policy of needing actual evidence to punish acts of sexual harassment. Tragically, no teachers were present to intervene, and the student was violently sexually assaulted and raped.
For some reason, the district has persisted in arguing that it was not responsible for the assaults, notwithstanding its knowledge of the attacker’s history and allegations that school officials even knew of this plan to catch him in the act. Late last year, the Eleventh Circuit disabused the district of its notions in Hill v. Cundiff, 797 F.3d 948 (11th Cir. 2015), and remanded the case to the trial court. That remand led to this week's settlement.
Applying the Title IX deliberate indifference framework from the Supreme Court’s opinion in Davis v. Monroe County, the Eleventh Circuit had written:
We now ask what the Board knew—vis-à-vis Principal Blair or Assistant Principals Dunaway or Terrell—about CJC's alleged harassment and discrimination. . . . The Board admits it had knowledge of CJC's disciplinary history that was tersely recorded in the iNOW database. The Board does not contest it had actual knowledge of CJC's unrecorded instances of alleged sexual harassment in January 2010. Administrators learned weeks before the rape that CJC had been propositioning girls to have sex in bathrooms. On January 13, 2010, ten days before the rape of Doe, the administrators learned CJC had allegedly inappropriately touched a female student. . . . Construing the facts in favor of Doe for purposes of summary judgment, the Board (through Dunaway) had actual knowledge of the use of Doe as rape bait for CJC in the sting operation and CJC's propositioning of Doe to have sex. . . .
Wednesday, March 9, 2016
According to local news report, the Franklin County School Board in Tennessee is considering taking a radical step simply to prevent a Gay-Straight Alliance from forming in the district: eliminate extracurricular activities altogether. A federal statute mandates that once schools open their doors to student groups (and outside groups) that they open their doors equally to everyone. The initial intent behind the statute was to ensure equal access to religious groups. The statute specifically paved the way for church's to begin holding services in some schools. Gay-Straight Alliances have used this legislation to their benefit in numerous communities that would have otherwise excluded them. Apparently, Franklin County would rather keep everyone out than let the Gay-Straight Alliance in.
The New Civil Rights Movement reports:
The GSA at Franklin County High School in Winchester has been under attack since it first met in January, with parents comparing it to ISIS, and students vandalizing the club's posters andwearing "Straight Pride" signs in protest.
Last month, anti-LGBT residents who spoke at a school board meeting warned that the GSA is part of a "radical gay political agenda" that seeks to recruit children:
In response to the controversy over the GSA, the Franklin County School Board has decided to draft new guidelines for student organizations. Under the federal Equal Access Act, officials must allow the GSA unless they eliminate all extracurricular clubs, from the Fellowship of Christian Athletes to the Student Council.
Tuesday, March 8, 2016
Parents of three female students are suing North Carolina's Charter Day School, alleging that its dress code prohibits girls from wearing pants or shorts even though boys are required to wear pants or shorts to school. Female students must wear skirts, skorts, or jumpers to school or face disciplinary action. To avoid overexposure in jumpers and skirts, female kindergartners have been instructed on how to "sit like a princess" during reading time when students sit on the floor. The plaintiffs allege that the dress code at the K-8 school is enforced daily except the one day a week that students wear their gym uniforms to school and during school "spirit days," when students must pay $2 to be allowed to wear jeans. According to the suit, school officials told parents that skirts presented a more “professional image” and that the policy was based on “chivalry,” “traditional values,” and “mutual respect.” The founder of Charter Day School elaborated in an email that the number of female students injured during the Columbine shootings showed a need for students to feel respect for their peers. The ACLU represents the plaintiffs in the § 1983 suit filed in the U.S. District Court for the Eastern District of North Carolina, posted here.
Wednesday, March 2, 2016
As reported a little over a week ago, both houses of the South Dakota legislature Both houses of the legislature passed a bill that would have prevented transgender students from using bathrooms and locker rooms consistent with their gender. To the governor's credit, he indicated that he would closely consider the bill before making a decision on whether to sign it. Presumably, the Office for Civil Rights' interpretation of Title IX, which would deem such a policy a violation, played no small part in the governor's decision. Yesterday, he vetoed the bill. He did, however, wait until the last minute. Had he not vetoed it, the bill would have automatically become law last night. Unfortunately, the issue is not entirely over, as the legislature still has the authority to override the veto. But given that the bill only succeeded by a 57 percent vote in the senate, it is unlikely to have the necessary votes.
Governor Daugaard offered this statement:
House Bill 1008 does not address any pressing issue concerning the school districts of South Dakota. As policymakers in South Dakota, we often recite that the best government is the government closest to the people. Local school districts can, and have, made necessary restroom and locker room accommodations that serve the best interests of all students, regardless of biological sex or gender identity.
This bill seeks to impose statewide standards on “every restroom, locker room, and shower room located in a public elementary or secondary school.” It removes the ability of local school districts to determine the most appropriate accommodations for their individual students and replaces that flexibility with a state mandate.
If and when these rare situations arise, I believe local school officials are best positioned to address them. Instead of encouraging local solutions, this bill broadly regulates in a manner that invites conflict and litigation, diverting energy and resources from the education of the children of this state.
Preserving local control is particularly important because this bill would place every school district in the difficult position of following state law while knowing it openly invites federal litigation. Although there have been promises by an outside entity to provide legal defense to a school district, this provision is not memorialized in the bill. Nor would such defense eliminate the need for school or state legal counsel, nor avoid expenses relating to expert witnesses, depositions and travel, or other defense costs. Nor does the commitment extend to coverage over settlement or damage expenses. This law will create a certain liability for school districts and the state in an area where no such liability exists today.
For these reasons, I oppose this bill and ask that you sustain my veto.