Title IX of the Equal Protection Clause provides: ““[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The Department of Education’s (DOE) implementing regulations permit the provision of “separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex.” DOE’s Office for Civil Rights has interpreted how this regulation applies to transgender students as follows: “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.”

A transgender high school student (G.G.) in Gloucester County, Virginia, challenged the bathroom use policy imposed by the local school board that required transgender students to use either a private bathroom or the restrooms assigned to their birth gender. G.G. who’s “biological sex” is female but gender identity is male, had used the boys’ restroom for seven weeks with the permission of school administration prior to the school board’s policy. G.G. sought an injunction allowing him to use the boys’ restroom, and further he argued that the school board impermissibly discriminated against him in violation of Title IX. The matter was on appeal to the United States Court of Appeals for the Fourth Circuit (Fourth Circuit).

In its decision, the Fourth Circuit held that DOE’s interpretation of its regulation was entitled to deference and accorded controlling weight in the case. Thus, the Fourth Circuit reversed the United States District Court for the Eastern District of Virginia (Norfolk)’s dismissal of G.G.’s Title IX claim resulting from its contrary interpretation of the regulation and the deference and weight to be accorded to it. The Fourth Circuit also remanded the matter back to the district court to evaluate the request for injunctive relief in accordance with the correct evidentiary standards set forth in its opinion.

Importantly, the Fourth Circuit has appellate jurisdiction over the district courts in Maryland, Virginia, and North Carolina. North Carolina’s recent passing of a law that prohibits transgender individuals from using public restrooms that correspond to their gender identity has garnered significant media attention and backlash. This ruling could threaten that part of North Carolina’s law that requires transgender students in public schools and universities to use bathrooms corresponding to the gender on their birth certificate.

The Fourth Circuit decision can be found at the following: http://www.ca4.uscourts.gov/Opinions/Published/152056.P.pdf