This past week, the ACLU publicized a brief for the respondent (Gavin Grimm) in the upcoming Supreme Court case G.G. v. Gloucester County School Board. A mere cursory reading of each brief filed would display two vastly different perspectives on the role of Title IX in the educational world. Unlike many Supreme Court cases, this case should be very simple to decide. Over the coming weeks, we will break this case down, as this case’s implications are both extremely important and concerning.
G.G. v. Gloucester Bathroom Dispute:
G.G. is a 17-year-old at Gloucester High School. G.G. was born a female, yet, in April 2014, she was diagnosed with gender dysphoria. The condition of gender dysphoria causes people to feel “strongly that they are not the gender they physically appear to be.” In this case, G.G. was advised by a psychologist to “transition” to a male and begin “us[ing] … the [boys’] restroom.” At the time of the filing of the petitioner’s brief, G.G. legally adopted a male name yet has not undergone any surgical procedures to alter her anatomically female body.
Prior to the 2014-2015 school year, Gloucester High School adopted multiple accommodations for G.G. such as altering G.G.’s records to comply with G.G.’s gender identity and telling teachers to address G.G. by a male name and pronouns. Additionally, the principal of the high school allowed G.G. to use the boys’ restroom when requested on October 20, 2014. However, according to the brief, “the next day, the Board [for the high school] began receiving numerous complaints from parents and students who regarded G.G.’s presence in the boy’s restroom as an invasion of student privacy.”
Upon consideration, and following two public meetings at the end of 2014, the school board for the Gloucester County Public School system developed and adopted the following policy:
“It shall be the practice of the GCPS to provide male and female restroom and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.”
It is important to note that, prior to the adoption of this resolution, Gloucester High School “announced that it would install three single-stall unisex bathrooms.” G.G. refused to use these unisex bathrooms claiming that she feels “stigmatized and isolated” when using them.
G.G. v. Gloucester Ferg-Cadima Letter:
On December 14, 2014, several days before the school board approved of the above resolution, a lawyer e-mailed the Department of Education (DoE) asking whether the DoE had any “guidance or rules” on the topic in dispute. On January 7, 2015, weeks after the school board passed the resolution, James A. Ferg-Cadima, an Acting Deputy Assistant Secretary for Policy in the Department’s Office of Civil Rights, replied with a letter.
While conceding that Title IX and its following regulations allow schools to provide separate restrooms for their male and female students, the letter also provides the following guidance: “When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity.” In short, schools can not provide separate restrooms for their male and female students based on their students’ biology. Instead, schools must delineate their restrooms based on their students’ feelings.
As noted in the petitioner’s brief, the “Ferg-Cadima letter cited no agency document requiring schools to treat transgender students ‘consistent with their gender identity’ regarding restroom, locker room, or shower access.”
Questions of the Case:
The Court has two questions before it. First, should the Ferg-Cadima letter be given deference before the Court despite it being an unpublished agency letter that has no force of law? Second, regardless of the Ferg-Cadima letter’s level of deference, should the guidance provided by the DoE be given effect? In the coming weeks, we will break down the very easy answers to these important questions.