The three branches of the United States government provide a system of oversight that supports a balance of federal power. The NASPActs Policy Basic Series provides additional insight on the nation’s system of checks and balances as well as the student affairs role within our representative democracy. This post focuses on the role of the Judiciary. While the Supreme Court of the United States (SCOTUS), the highest court with the final say on matters of federal jurisdiction, is releasing results on many cases this month, this post will talk about the role of lower courts and state rulings. One decision that will not be reached by SCOTUS in June is that of bathroom and facility use access for former high school trans student Gavin Grimm in the case GG vs. Gloucester County School Board. The case stems back to early 2017 when the case was scheduled to hear arguments before SCOTUS over a year ago. While a decision in this case could have set a nationally binding legal precedent explicitly including gender identity within sex discrimination protections under Title IX, the case was remanded back to the lower court system following Secretary of Education Betsy DeVos and Attorney General Jeff Sessions decision to rescind Obama-era guidance relating to bathroom access for trans individuals. Therefore, while we anticipate upcoming rulings from SCOTUS, the NASPA Policy and Advocacy Team along with trans advocates across the country, carefully continue to watch the lower courts for establishing precedent regarding the rights of trans students amidst executive rollbacks.
Secretary of Education Betsy DeVos testified before the House Education and Workforce Committee earlier this week providing comments on “Examining the Policies and Priorities of the U.S. Department of Education.” During the hearing, Representative Jared Polis (D-CO) cited federal Appeals Court decisions, Kenosha v. Whitaker and Glenn v. Brumby, to point to standing legal precedent regarding trans protections. Secretary DeVos pointed out that these cases had not yet reached SCOTUS, and that the Department of Education would not recognize these cases as precedent until they had undergone the decision-making process through the nation’s highest court and thus, in her interpretation, became binding.
At the end of May 2017, the 7th Circuit Court of Appeals ruled in favor of Ashton Whitaker, a senior high school student in the case of Whitaker vs. Kenosha United School District, citing that Wisconsin was in violation of Title IX sex discrimination prohibitions by prohibiting Ashton from using the restroom corresponding with his gender identity. In 2011, a trans woman won her workplace discrimination claim under the 11th Circuit Court of Appeals in Glenn v. Brumby, determining that discrimination against someone on the basis of gender non-conformity extends to sex-based discrimination under the Equal Protection Clause. As both were Court of Appeals decisions, these cases establish legally binding precedent to all the trial courts below them.
Despite Secretary DeVos’s opinion, the precedent established by these rulings does matter and is considered binding for all lower courts covered by the higher court’s jurisdiction until and unless a higher court rules differently. If a case is not appealed to a higher court, or if a higher court declines to review and issue a decision on a lower court case, the ruling of the lower court stands as case law and may be used as evidence of legality in other cases. For the cases cited by Representative Polis, until and unless SCOTUS takes up either case, the rulings reached by the Appeals Courts are legally binding on all lower courts in the 7th and 11th Circuits.
Even in the case of Gavin Grimm, a federal judge ruled in favor of the student earlier this week, finding that Gloucester High School had violated Title IX by denying him bathroom access matching his gender identity, continuing to establish a trend toward trans inclusiveness in lower court rulings.
State and federal-level courts continue to consider trans rights within public K-12 school districts. The outcome of these rulings may impact public postsecondary institutions as well. Courts have been asked to rule on the legality of trans inclusive policies in recent cases in Maryland, Missouri, Montana, Oregon, and Pennsylvania regarding bathroom and facility use access.
This past spring, student Max Alexander Brennan continued to push the Maryland courts to allow for his use of the boys’ locker room at his local high school in M.A.B. v. Board of Education of Talbot County. While former precedent established from GG v. Gloucester County School Board’s original case before the 4th Circuit Court of Appeals incentivized his school to allow him use of the boys’ restroom, Max was still denied locker room access. Max won his case in March after a federal judge ruled in that Maryland’s constitution extends protections to trans individuals. The outcome of M.A.B. v. Board of Education of Talbot County, while in favor of the trans student, only provided access for Max and did not provide a guarantee that locker room access would be made available according to the gender identity of all students in his school district moving forward.
Missouri’s Human Rights Act came under question this past April when the Missouri Supreme Court heard arguments for Rachelle Appleberry v. Blue Springs R IV School District. The case involved a trans student in Blue Springs R-IV School District being denied access to the male restroom and locker rooms. The student was denied access even after the school district changed the student’s name in their records and allowed him to participate in sports with other male students. The Missouri Human Rights Act states that “all persons within the jurisdiction of the state of Missouri are free and equal” and entitled to public facility use access such as restrooms “without discrimination or segregation because of race, color, religion, national origin, sex, ancestry, or disability.” The attorney representing the student argued that should the courts decide that the law does not extend to gender identity, it could greatly affect the rights of trans individuals in public institutions across the state. A ruling is expected in the coming months.
This past week a Montana district court judge heard testimony in the case of Hobaugh v. Montana, a case brought on by the Montana Room Privacy Act, which is a ballot measure restricting public bathroom and facility use access to one’s corresponding “biological sex.” The complainant in Hobaugh v. Montana, the American Civil Liberties Union, is challenging the measure before it appears on the ballot, which is slated for the November election.
The two other cases, also scheduled to be heard in court this week, also deal with bathroom use access, but with the school’s trans inclusive policies being brought into question. An Oregon case, Parents Privacy v. Dallas School District, pursued by Parents for Privacy and Parents’ Rights in Education, is aimed against inclusive bathroom policies instituted in a local school district. The complainant in Parents Privacy v. Dallas School District argues that the new policies work against Title IX, in that the policies “radically changed the meaning of ‘sex’” in expanding these protections to be inclusive of gender identity. In addition, the complainant finds the inclusive policies problematic because they believe it means that young students will inevitably encounter a student of the opposite sex in “private intimate spaces.”
The final case to be considered this week is that of Doe v. Boyertown, which will appear before the 3rd Circuit Court of Appeals in Philadelphia. Similar to the Oregon case, the parents in this case claim the school district’s gender inclusive bathroom policy violates student privacy. Doe v. Boyertown argues that the district’s “accommodation crosses a statutory and constitutional line when the District authorizes entry of one sex into the other sex’s privacy facilities.”
Without litigation from SCOTUS, a permanent legislative solution from Congress, or guidance from the Department of Education, states continue to grapple with interpreting sex discrimination protections under Title IX. However, current judicial outcomes show a persuasive trend in decisions that favor trans rights, and as court cases continue to move through the judiciary system we will continue to monitor and provide updates on the state of trans rights on our campuses.
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