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HEIDI/STOCK.ADOBE.COM

At the start of its 2023 term, the U.S. Supreme Court had before it a case that many in the school law community thought might clear up years of confusion. The case, Metropolitan School District of Martinsville v. A.C., which arose in Indiana, presented the Court with an opportunity to address an issue on which federal law is not settled, state laws conflict, and some communities are divided.

Martinsville was not the first case that had been presented to the justices on the same controversial topic. In 2021, the Court was asked to consider Grimm v. Gloucester County School Board, a well-known case from Virginia that had already visited the Court once in 2016. After halting an injunction granted by the trial court and affirmed by the appellate court, the Supreme Court finally received a petition on the merits of the case five years and an administration shift later. The Court accepted the case, only to send it back down to the appellate court in light of the new position of the Departments of Education and Justice.

What issue was at the center of these and 10 or so other cases decided by federal courts in the last decade? “[W]hether Title IX or the Equal Protection Clause prohibits schools from maintaining separate bathrooms on the basis of students’ biological sex.” The question of how, when, and where to accommodate students’ preferred bathroom choice has caused turmoil for school boards, parents, teachers, administrators, coaches, and counselors in situations when the interested parties disagree and the law is unclear. When a student identified as one gender/sex at birth seeks to identify as the other, or neither, at school, including access to the corresponding bathroom or locker room, school personnel work with the student and the family to determine how the student will access such spaces.

But when the student and/or family disagree with the school’s policy, sometimes required by state law, that requires use of such spaces according to biological sex, the disagreement can result in litigation.

Four significant cases in which students have challenged biological sex bathroom use policies have reached federal appellate courts: Martinsville and Gloucester, as well as Whitaker v. Kenosha Unified School District No. 1 Board of Education and Adams v. School Board of St. Johns County.

In Gloucester, the U.S. Court of Appeals for the Fourth Circuit, sitting in Richmond, determined that the school had discriminated against the student in violation of both Title IX and the Equal Protection Clause by requiring students to use bathrooms based on biological sex. In Whitaker, the Seventh Circuit, sitting in Chicago, determined that a Wisconsin student was entitled to an injunction allowing use of bathrooms according to gender identity, because his Title IX and Equal Protection sex discrimination claims against the school’s biological sex-based bathroom policy were likely to succeed. And in Martinsville, the Seventh Circuit again held that students in two lawsuits were entitled to injunctions against biological sex-based bathroom policies based on its previous decision in Whitaker. But in Adams, the 11th Circuit, sitting in Atlanta, decided that a Florida school district’s policy requiring bathroom use by biological sex did not violate the Title IX or Equal Protection rights of a student who wished to use the bathroom according to gender identity.

In its Martinsville ruling, the Seventh Circuit all but asked the Supreme Court to take up the case: “Litigation over transgender rights is occurring all over the country, and we assume that at some point the Supreme Court will step in with more guidance than it has furnished so far.” But on Jan. 16, the Court denied the school district’s petition, leaving the law unsettled for now. To understand why the Court declined the case, and to ascertain where the law may be going, we need to consider a number of diverging forces peculiar to this issue.

Federal law has been interpreted differently from court to court and administration to administration. As described above, federal appellate courts have split on whether Title IX and the Equal Protection Clause protect students’ right to use the bathroom or locker room associated with their gender identity. Under the Obama administration, the Department of Education released guidance taking the position that Title IX provided this right. The Trump administration’s Department of Education rescinded that guidance and issued its own, taking the opposite position.

The Department of Education plans to release new Title IX regulations in March 2024. If the new final regulations resemble the proposed version issued in July 2022, they will prohibit discrimination based on sex, including discrimination based on gender identity. New regulations will have the force of law but are likely to be challenged in court.

Some state laws prohibit discrimination based on gender identity, while others do not. Some state laws require schools to have bathroom use policies based on biological sex. If the Supreme Court eventually clarifies whether Title IX and/or the Equal Protection Clause covers gender-identity-based bathroom use, state laws will be in question and will be challenged or changed.

Where does this leave school districts grappling with maintaining learning environments that are safe and supportive for students—responsive to family and community concerns—AND with being legally compliant? For now, school leaders should stay in close contact with their school attorney member of the Council of School Attorneys to help them understand how federal law in their circuit applies and affects state requirements.