A quick primer on the case, G.G. v. Gloucester County School Board: G.G. is a boy. He is a 16 year-old Virginia high school student. And, like every human before him and since, in the course of a 7-hour school day, he needs to pee. G.G. started using the boys' bathroom with approval of the school administration. Shortly thereafter, the local school board implemented a policy to prevent G.G. from using the boys' bathroom. Most of the 37 people who spoke at public comment during the meeting - i.e. adults - spoke against G.G. - a child - in ill-informed and crude ways, and the vote carried 6-1.
Here, we must pause for a moment on the human realities of this case. Remember what it was like to be 16? Maybe you fretted over taking your driver's license test. Maybe you feared rejection from a would-be first date. Maybe you had that now-comically common nightmare that you forgot to wear clothes to school before trying to sit at the cool kids' table. Now imagine that your school board - not your teacher, not your principal, but their bosses - put YOU and your private moments on their agenda, then enacted a POLICY about it. Lesser mortals may have quietly acquiesced. Maybe they would have transferred. But not G.G. He sued the pants off them.
G.G. brought two claims: (1) that preventing him from using the bathroom that corresponds to his gender identity violates Title IX, namely as it has been interpreted by regulations enacted by the Department of Education; and (2) that this policy also violates the Equal Protection Clause, which also prohibits sex-based discrimination. G.G. filed a motion for a preliminary injunction to prevent the school from enforcing this new policy. The reasons should be obvious. But it suffices to say that a student forced to use a bathroom that does not correspond to his gender identity - like, say, the girls' room - is dangerous for a young boy. Taunting, bullying, even violence - these are things we know that the vast majority of transgender kids face in schools, which are microcosms of the culture and laws teaching it how to act. Not to mention that using the boys' room is the medically appropriate course for a young man diagnosed with gender dysphoria who has taken many, many private and public steps in his transition to arrive at this moment.
Generally, to win on a preliminary injunction, G.G. needed to show 4 things: (1) likelihood of success on the merits of his claim later on; (2) irreparable harm if immediate relief were not granted; (3) balancing the harms to both sides, that the scales tipped in favor of giving G.G. relief; and (4) granting an injunction would serve the public interest. At a hearing in district court, the judge dismissed his Title IX claim, ostensibly finding that the school's policy did not violate the express language of Title IX. The trial court denied G.G.'s motion for a preliminary injunction. G.G. appealed to the Fourth Circuit.
In ruling for G.G., the Fourth Circuit rejected the trial court's rationale and application of law. Title IX states: "no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance." The issue boils down to this: what does "on the basis of sex" mean? Does it include transgender people, whose biological sex at birth and gender identity are not aligned?
As to transgender students, the answer is not so clear-cut. It's certainly not answered by the express terms of the statute itself. Note here that this is precisely why laws like these - Title IX, Title VII, Title II, etc. - need to be amended to expressly include gender identity and sexual orientation. So to answer the question, the Department of Education, a federal agency, relied upon widely accepted scientific research in adopting a policy in January 2015 to make clear that "on the basis of sex" means that transgender students must be treated in accordance with their gender identity. Also really important: the DOE policy is consistent with other federal agencies, including the Equal Employment Opportunity Commission, Occupational Health & Safety Administration, Department of Housing and Urban Development, and Office of Personnel Management.
Back to G.G. The Fourth Circuit held that the trial court did not adequately afford deference to the Department's regulations in interpreting Title IX. That's another way of saying that Title IX protects G.G.'s right to use the boys' bathroom. The case was remanded back to the trial court for a ruling consistent with the 4th Circuit's opinion. Even if the judge refuses to follow the Fourth Circuit's ruling, you can bet any errors will again be corrected on appeal.
So, what do you take from this? First of all, that North Carolina honest-to-goodness seriously risks losing its $4 billion in Federal funding if it doesn't repeal the parts of HB2 that expressly, facially violate Title IX by requiring transgender students to use a bathroom that does not correspond to his/her/hir/their gender identity. The rulings of the 4th Circuit are binding on North Carolina. HB2 violates Title IX.
Secondly, that this November's election is enormously significant in lesser known ways. Many people understand that the next President will appoint a large number of federal judges, like the ones sitting on the Fourth Circuit and the Virginia District Court - not to mention anticipated vacancies on the U.S. Supreme Court. But the 4th branch of government is what I'm talking about here. The administrative regulations interpreted by 5 major federal agencies that impact the most basic tenets of life - school, employment, housing, and safety - did not spontaneously construe Title IX to protect transgender students, workers, tenants, and citizens. Administrative agencies are vested with lawmaking authority vested by Congress, and the Executive Branch is vested with substantial authority to constitute these agencies with appointments. It was Obama appointees who were receptive to the recommendations of the medical community met by the tireless work of advocates who brought these regulations to bare that are now shaping law.
B&B is proud to have stood with the LGBT community from the beginning. If you or someone you know is negatively impacted by HB2 and needs to talk to an Asheville civil rights lawyer, give us a call or use the contact form below. We'll go with you.