Yesterday, a federal appellate court issued a decision regarding what school corporations must do to accommodate requests by a transgender student to use bathrooms that do not correspond with the student’s gender at birth. Under this decision, which is binding on Indiana school corporations, a school corporation’s failure to allow a transgender student to use a restroom that corresponds with their new identity may violate Title IX and the U.S. Constitution.
In this case, the high school student who was born a female began recognizing himself as a male as an eighth grade student, and he was diagnosed with gender dysphoria while a freshman in high school. As a freshman, he began hormone treatment and then legally changed his name. The school district had largely accommodated the student’s requests, such as allowing him to wear a tuxedo like other male students in orchestra performances. But when he requested to use the boys’ restroom, the school district declined. Previously, and evidently unbeknownst to the central office, the student had used the boy’s restroom without incident, but this changed once a teacher encountered the student in the restroom. Instead of granting the student access to the boys’ restroom, the school district allowed him to use the girls’ restroom or a gender-neutral single occupancy restroom in the school’s central office. To avoid the issue altogether, the student restricted water intake, which aggravated his vasovagoal syndrome. The condition caused the student to be dizzy and faint. The increased effects of his condition and stress related to the accommodation issues caused him to contemplate suicide.
The student sued the school district under Title IX and the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment. The student also sought a preliminary injunction to have the court immediately require the school district to grant him access to the boys’ restroom. The lower court agreed with the student, and the school district appealed.
On appeal, the appellate court also agreed with the student. Citing a recent court decision that expanded Title VII (which is a federal law that applies to employees’ claims against employers) to prohibit discrimination against homosexuals, the appellate court concluded that Title IX protects transgender students as well. The appellate court also found that the U.S. Constitution provided the student with certain protections. Even though the school district argued that it was protecting the privacy interests of other students, the appellate court found that the school district’s presentation of evidence on this point was too abstract and speculative since the school district had received no complaints from other students. And the appellate court also questioned how the privacy rights of other students would be invaded if the transgender student uses a toilet in a restroom stall. Importantly, the appellate court repeatedly questioned why the school district did not have a written policy on this subject, suggesting that the school district’s stated defenses were manufactured after the fact.
This decision fills a void — for now — but it may be appealed. In the last few years, Indiana public schools have received conflicting guidance from non-binding courts and agencies. However, this decision is important because it comes from an appellate court with jurisdiction over Indiana and is binding. If not appealed, this decision will become the law of the land in Indiana. School corporations should remain vigilant in monitoring this case.
In the meantime, and while school is out, schools should review existing policies and practices and schedule appropriate in-service training for administrators to handle these sensitive issues.
The attorneys in the Education Law Group of Bose McKinney & Evans are available to answer your questions and provide guidance as needed to comply with this important development.