Schools Caught in the Crossfire: Transgender Accommodation and the Burgeoning Rift between the OCR and the Federal Courts

Over the past few years, one of the fastest growing issues in the area of school law has been the accommodation of students identifying as transgender.  Researchers estimate that approximately 0.3% of the U.S. population identifies as transgender.  Despite this relatively small number, transgender individuals are becoming increasingly visible in American culture.  For instance, Caitlyn Jenner is on the cover of fashion magazines and has her own reality television program.  Similarly, the hit Netflix series, Orange is the New Black, features a transgender character played by an actress who is a transgender advocate in real life. With this increased visibility, school administrators are more likely to encounter openly transgender students.

Transgender status is an expressly protected class under Minnesota law, and under certain circumstances falls within the protections of Title IX, which prohibits discrimination on the basis of sex.  As such, school districts may be required to provide certain accommodations to transgender students.  However, the question of what specific accommodations are legally required remains somewhat unclear—particularly in regard to restroom and locker room accommodations.

There is a burgeoning rift between how the federal courts and the Office for Civil Rights (OCR) are interpreting and applying Title IX to restroom/locker room accommodations for transgender students.  The OCR currently takes the position that Title IX requires school districts to permit transgender students to use the bathroom and locker room facilities consistent with their gender identity, as opposed to their biological sex.

In contrast, two recent federal court decisions out of Pennsylvania and Virginia held that regulations promulgated under Title IX expressly permit school districts to designate bathroom and locker room usage on the basis of sex, as opposed to gender.  In other words, these courts held that the OCR’s position is inconsistent with what Title IX expressly states.  While neither of these court decisions are out of the Eighth Circuit, which includes Minnesota, they would likely be persuasive to federal judges within the District of Minnesota.

These federal court decisions are currently on appeal.  While a decision by a circuit-level court will likely be afforded more weight than a district court decision, it is likely that the OCR will continue to interpret and apply Title IX broadly until the Supreme Court weights in.

Unfortunately, while the federal courts and the OCR continue to dispute what Title IX actually requires, school districts are caught in the crossfire.  Please join Tim Sullivan at the MSBA Leadership Conference on Thursday at 2:30 p.m. in room M100H to learn more about this emerging and controversial issue.