Transgender Boy's Bathroom Access Lawsuit Reinstated

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By Jeffrey Koelemay and Melissa Heelan Stanzione

April 19 — A transgender boy's Title IX claims over bathroom access at his high school were reinstated April 19 by the U.S. Court of Appeals for the Fourth Circuit.

“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,” according to the Department of Education's Office for Civil Rights, the court said.

Leading Decision on Issue

“Across the rest of the country, the Fourth Circuit's decision is now the leading decision on the issue,” Joshua A. Block, an attorney with the American Civil Liberties Union who represented the boy, told Bloomberg BNA April 20.

The ruling “completely obliterates the talking points some backers of these bathroom bills have been saying,” Block said.

These arguments—“that legislators can just put their head in the sand and ignore DOE's interpretation because no federal court has yet adopted it are out the window,” he said.

Any legal advisor will be committing malpractice by not advising a school that it will be subject “to an extreme risk of liability” if they adopt one of these policies, Black said.

School Board Policy

The Gloucester County, Va., school board's policy was at issue here.

The student had been using the boy's restroom “without incident for about seven weeks” before pressure from community members led the school board to pass a resolution conditioning restroom access on “biological genders,” the court said.

The federal government supports the boy, according to its friend of the court brief.

A “subsequent administration” could “choose to implement a different policy,” but as it stands, the district court should have been more deferential to the DOE's interpretation of its own regulations, Judge Henry F. Floyd's majority opinion said.

DOE Statement ‘Non-Binding.'

The OCR's statement is non-binding and “has no force and effect in law,” Matt Sharp, an attorney for Alliance Defending Freedom, Atlanta, told Bloomberg BNA April 20.

The group filed an amicus brief in support of The Family Foundation of Virginia.

The court's ruling “flies in the face” of the clear language of Title IX, its legislative history “and even what every other court in the country said Title IX means,” Sharp said.

“Congress may also, of course, revise Title IX explicitly to prohibit or authorize the course charted here by the Department,” but “we leave policy formulation to the political branches,” the Fourth Circuit said.

Judge Andre M. Davis concurred in full but wrote separately to argue the court could have granted a preliminary injunction prior to remand.

Judge Paul V. Niemeyer dissented, saying the school “made a good-faith effort to accommodate” the student by offering use of the nurse's restroom and later providing unisex restrooms.

The American Civil Liberties Union, New York, the American Civil Liberties Union Foundation of Virginia, Richmond, Va., and Roger Baldwin Foundation of ACLU, Inc., Chicago, represented the student.

Harman Claytor Corrigan & Wellman P.C. represented the school board.

To contact the reporters on this story: Jeffrey D. Koelemay in Washington at, Melissa Heelan Stanzione in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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