By William J. Zee and Megan E. Bomba

June 28, 2021

The Supreme Court of the United States denied writ of certiorari in a case that garnered significant attention since 2018. While the decision issued by the Fourth Circuit Court of Appeals on April 19, 2016 stands, refusal to hear the case does not signal the high court’s agreement with the decision nor does it establish clarity nationally on the issue regarding the extent of Title IX protections for students that identify as transgender.

In G.G. v. Gloucester County School Board, G.G. sued his school district when he was required to use a separate bathroom after coming out as a transgender male. The suit alleged that the school was discriminating against him in violation of Title IX and the Equal Protection Clause of the U.S. Constitution. The suit was first dismissed by the trial court, which determined that Title IX does not prohibit discrimination on the basis of gender, gender identity or sexual orientation. On appeal to the Fourth Circuit, the court deferred to Title IX regulations issued by the Department of Education (DOE). The school sought review by the Supreme Court.

The Court’s refusal to hear the case is not surprising as there is no current split among the circuits. Moreover, when G.G. raised the issue on appeal, there was ambiguous guidance from the DOE and OCR regarding whether Title IX included protections for transgender students. In Bostock v. Clayton County, the Court recently applied the sex and gender protections under Title IX to individuals identifying as LGBTQI+. However, the Court specifically declined to address transgender policies in schools.

If you have questions regarding your policies addressing restroom access or other Title IX related issues please do not hesitate to contact William J. Zee or any of the attorneys in the Appel, Yost & Zee Education group.