Brian Callaway, left, and Justin Weber, right, of Pepper Hamilton.

Editor’s note: This is the first in a three-part series.

Transgender rights are an evolving area of the law, where case law decisions are often inconsistent. But one thing is clear—failing to proactively develop polices will create uncertainty and require unnecessary time and energy when questions ultimately arise. And, at worst, being unprepared could result in challenges from all sides—challenges similar to those faced by Township High School District 211 in Illinois. In 2013, a transgender student filed a complaint with the U.S. Department of Education against the district. The district resolved the matter by agreeing to allow the student to use the locker room associated with the student’s gender identity. As a result, a group of students and families who opposed this policy sued the district alleging privacy violations.

Part I of this article provides an overview of the evolving legal issues, primarily using the lens of Title IX of the Education Amendments Act of 1972. It focuses primarily on how issues would affect a school in Pennsylvania (but does not address the exceptions for those educational institutions that are controlled by a religious organization. See 20 U.S.C. Section 1681). Part II of this article discusses other federal and state laws relevant to trans issues. Part III, addresses the considerations schools should make when establishing, amending, or reviewing policies and best practices relevant to transgender students. Although many independent schools are not subject to Title IX, examining that legal framework is critical to understanding the evolving legal landscape and can help schools identify issues to address when developing policies and best practices.

Title IX

In the education setting, transgender rights are most often considered under Title IX. Title IX, like certain other federal statutes, prohibits discrimination based on sex, see Evancho v. Pine-Richland School District, 237 F. Supp. 3d 267, 295 (W.D. Pa. 2017). Title IX also allows certain distinctions based on sex. For example, separate living facilities are permitted by statute, 20 U.S.C. Section 1686, and separate toilet, locker room, and shower facilities are also permitted by regulation, 34 C.F.R. Section 106.33. Unfortunately, the law is unclear on what is encompassed by the term “sex.”

Sex or Gender?

Does “sex” refer to biological sex or does it have a broader meaning that encompasses gender and gender identity? According to the American Medical Association as a publisher, not as medical opinion, “sex” “refers to the biological characteristics of males and females,” while “gender” can include more than biological characteristics, “and serves as a cultural indicator of a person’s personal and social identity.” When people identify as transgender, it means, “among other things, that their gender identities are at odds with the sexes listed on their original birth certificates and with their external sex organs.”

The case law is split on how to deal with these distinctions. In decisions recognizing transgender rights, courts conclude that “sex” encompasses sex-stereotyping and gender, while other decisions limit “sex” to biological sex, see Compare Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017) (applying a theory of sex-stereotyping and finding that Title IX prohibits sex discrimination and treating transgender students differently than nontransgender students) with Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex. 2016) (holding that sex in the context of Title IX refers to biological sex).

This conflict is reflected within the U.S. Court of Appeals for the Third Circuit. For instance, a transgender male student sued the University of Pittsburgh for discrimination after he was barred from using locker rooms and restrooms reserved for men in Johnston v. University of Pittsburgh of the Commonwealth System of Higher Education, 897 F. Supp. 3d 657 (W.D. Pa. 2015). In considering the university’s motion to dismiss, the district court looked to Third Circuit precedent finding sex-segregated schools to be constitutionally permissible under Title IX. “Thus, while Title IX was intended to provide equal educational opportunities for both sexes, the statute does not necessarily prohibit sex-segregated spaces in educational settings.” The district court also noted that the student was allowed to dress like a man, change his name to reflect his male gender, and enroll in weight-training classes designated for men. The court dismissed the plaintiff’s Title IX claim, finding that the university “simply classified him based on his birth sex and prohibited him from entering sex-segregated spaces based on that classification, for the sole purpose of enforcing its policy of sex-segregated bathrooms and locker rooms.”

Other courts have concluded differently. In Evancho, the school district treated three transgender students in accordance with their gender identities in most ways, but the students were required by a school board resolution to use either single-user bathrooms or bathrooms labeled as matching their assigned sexes, not their gender identities. The plaintiffs argued that this violated both Title IX and the Equal Protection Clause of the Fourteenth Amendment. The district court agreed in part, granting injunctive relief to the plaintiffs on constitutional grounds (although ruling that it was premature to do so under Title IX), and denying the school district’s motion to dismiss. In 2017, the school district settled with plaintiffs, revising its policy and allowing students to use facilities consistent with their gender identity.

Similarly, in A.H. v. Minersville Area School District, No. 3:17-CV-391, 2017 U.S. Dist. LEXIS 193622, at *1 (M.D. Pa. Nov. 22, 2017), the court denied a defendant’s motion to dismiss claims by a transgender student. The plaintiff was an 8-year-old transgender girl who was prohibited from using the girls’ restroom at school because her birth certificate listed her as male. There, the court relied in part on the U.S. Supreme Court’s discussion of sex-stereotyping in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Price Waterhouse, the court found that Price Waterhouse denied a promotion to a female accountant who did not dress and speak in the traditionally “feminine” manner expected by her male superiors. This, the court found, meant that Price Waterhouse discriminated against the woman “because of her sex.” In A.H., the Middle District noted that several courts have “embraced a broad reading of the term ‘sex’” when interpreting federal antidiscrimination laws. A.H. The court noted that allegations from the complaint—including that the principal told the girl he was responsible for “protecting all of the students from” her was evidence of a discriminatory intent behind the school’s bathroom policy.

A Third Circuit panel recently noted in a precedential opinion that “barring transgender students from restrooms that align with their gender identity would itself pose a potential Title IX violation,” in Doe v. Boyertown Area School District, No. 17-3113 (June 18, 2018). The appellate panel there did not directly address the Western District’s Johnston decision. This was actually the panel’s second opinion on this issue. Earlier this summer it released its initial opinion, but the appellants sought rehearing en banc. While the Third Circuit denied that, four judges dissented, stating that the panel “went beyond what was necessary when it choose to address Boyertown’s tangential argument that the school district would have run afoul of Title IX had it implemented a policy that confined transgender students to use of bathrooms and lock rooms designed for their biological sex.” While rehearing was denied, the panel also vacated its earlier opinion and entered a new one, which softened some of the language regarding Title IX.

The Regulatory Guidance Is Unclear

If the case law is inconsistent, the regulatory guidance is no more helpful.

In 2016, in the wake of several headline-making disputes about transgender students and bathrooms, the U.S. Department of Education issued a letter providing guidance on how it expected schools to treat transgender students, see Dear Colleague Letter, U.S. Department of Justice and U.S. Department of Education (May 13, 2016), (the 2016 Guidance). In essence, the Education and Justice Departments interpreted sex broadly. That letter reasoned that Title IX’s ban on sex discrimination in educational settings extended to “discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” It further stated that under Title IX “a school may provide separate [restroom and locker room] facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity.”

That guidance was withdrawn in the early days of the Trump administration, see Dear Colleague Letter, U.S. Department of Justice and U.S. Department of Education (Feb. 22, 2017), 2017 Guidance). The second letter observed that the 2016 Guidance had led to several court cases regarding transgender rights, and asserted that states and local school districts have the “primary role” in setting educational policies. Because of that, the Education and Justice Departments decided to “rescind” the 2016 Guidance “in order to further and more completely consider the legal issues involved.”

The next part in this series, Part II, will examine other federal and state laws relevant to this issue.

Justin G. Weber is a partner with Pepper Hamilton and attorney-in-charge of the Harrisburg office. He is a member of the firm’s trial and dispute resolution practice, a seasoned and trial-ready team of advocates who help clients analyze and solve their most emergent and complex problems through negotiation, arbitration and litigation.

Brian H. Callaway is an associate with the firm, resident in the Philadelphia office. Callaway concentrates his practice on commercial litigation, including media law, insurance bad faith litigation and complex contract disputes.