Title IX, Schools and Transgender Students
The United States District Court for the Eastern District of Virginia recently issued a decision in the emerging area of Title IX requirements with respect to transgender students. The plaintiff, a transgender high school student, filed suit under Title IX and the Equal Protection Clause, alleging that the Gloucester County School Board’s resolution limiting the use of sex specific bathrooms and locker rooms to students of the corresponding sex was unlawful.
The court granted the district’s motion to dismiss the complaint, relying heavily on a Title IX regulation that permits separate toilet, locker room and shower facilities on the basis of sex so long as the facilities are comparable (34 C.F.R. § 106.33).
The court also rejected the “Statement of Interest” that the United States Department of Education (USDOE) filed, specifically stating that USDOE’s recent interpretations in opinion letters and published guidance on a transgender student’s access to such facilities are “plainly erroneous and inconsistent with [34 CFR 106.33].” See Opinion at p. 14.
The opinion, while not controlling in Arizona, is informative in this developing area of law and may undercut an anticipated USDOE “Dear Colleague Letter” if that letter repeats USDOE’s interpretation of Title IX, which was rejected by the federal court in Virginia.
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