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:

First, we have little difficulty concluding that the language itself—“of one sex” and “of the other sex”—refers to male and female students. Second, in the specific context of § 106.33, the plain meaning of the regulatory language is best stated by the United States: “the mere act of providing separate restroom facilities for males and females does not violate Title IX . . . .” U.S. Br. 22 n.8. Third, the language “of one sex” and “of the other sex” appears repeatedly in the broader context of 34 C.F.R. § 106 Subpart D, titled “Discrimination on the Basis of Sex in Education Programs or Activities Prohibited.”6 This repeated formulation indicates two sexes (“one sex” and “the other sex”), and the only reasonable reading of the language used throughout the relevant regulatory section is that it references male and female. Read plainly then, § 106.33 permits schools to provide separate toilet, locker room, and shower facilities for its male and female students. By implication, the regulation also permits schools to exclude males from the female facilities and vice-versa.

Our inquiry is not ended, however, by this straightforward conclusion. Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms. We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading— determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity. Cf. Dickenson-Russell Coal Co. v. Sec’y of Labor, 747 F.3d 251, 258 (4th Cir. 2014) (refusing to afford Auer deference where the language of the regulation at issue was “not susceptible to more than one plausible reading” (citation and quotation marks omitted)). It is not clear to us how the regulation would apply in a number of situations—even under the Board’s own “biological gender” formulation. For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.

Because we conclude that the regulation is ambiguous as applied to transgender individuals, the Department’s interpretation is entitled to Auer deference unless the Board demonstrates that the interpretation is plainly erroneous or inconsistent with the regulation or statute.

Title IX regulations were promulgated by the Department of Health, Education, and Welfare in 1975 and were adopted unchanged by the Department in 1980. 45 Fed. Reg. 30802, 30955 (May 9, 1980). Two dictionaries from the drafting era inform our analysis of how the term “sex” was understood at that time. The first defines “sex” as “the character of being either male or female” or “the sum of those anatomical and physiological differences with reference to which the male and female are distinguished . . . .” American College Dictionary 1109 (1970). The second defines “sex” as:

the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change, that in its typical dichotomous occurrence is usu[ally] genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness and femaleness . . . . Webster’s Third New International Dictionary 2081 (1971).

Although these definitions suggest that the word “sex” was understood at the time the regulation was adopted to connote male and female and that maleness and femaleness were determined primarily by reference to the factors the district court termed “biological sex,” namely reproductive organs, the definitions also suggest that a hard-and-fast binary division on the basis of reproductive organs—although useful in most cases—was not universally descriptive. The dictionaries, therefore, used qualifiers such as reference to the “sum of” various factors, “typical dichotomous occurrence,” and “typically manifested as maleness and femaleness.” Section 106.33 assumes a student population composed of individuals of what has traditionally been understood as the usual “dichotomous occurrence” of male and female where the various indicators of sex all point in the same direction. It sheds little light on how exactly to determine the “character of being either male or female” where those indicators diverge. We conclude that the Department’s interpretation of how § 106.33 and its underlying assumptions should apply to transgender individuals is not plainly erroneous or inconsistent with the text of the regulation.

. . .

We conclude that the Department’s interpretation of its own regulation, § 106.33, as it relates to restroom access by transgender individuals, is entitled to Auer deference and is to be accorded controlling weight in this case.9 We reverse the district court’s contrary conclusion and its resultant dismissal of G.G.’s Title IX claim.