A recent survey conducted by the Trevor Project focused on the challenges experienced by nearly 35,000 lesbian, gay, bisexual, transgender and queer and questioning (LGBTQ) youth ages 13-24 across the United States. Forty-two percent seriously considered attempting suicide in the past year, while 72% reported symptoms of generalized anxiety disorder. Seventy-five percent reported experiencing discrimination based on their sexual orientation or gender identity at least once in their lifetime. Only one in three transgender youth found their home to be LGBTQ-affirming.1

During spring 2022, state legislatures around the country considered and, in some cases, passed legislation aimed at gay and transgender issues in schools. Some of the proposed or enacted legislation cited “parents’ rights” to ban any discussion of gay and transgender issues in public schools. Some states, including Oklahoma, enacted legislation to ban transgender athletes’ participation in girls or women’s sports.2 This article discusses the legal issues concerning transgender students faced by Oklahoma’s public schools.

There are currently no explicit legal protections for transgender students at the federal level.3 However, courts that have considered the issue have concluded that Title IX of the Education Amendments of 1972 (Title IX), which prohibits discrimination on the basis of sex, also prohibits discrimination on the basis of gender identity.4 The First Amendment and the Due Process and Equal Protection clauses of the 14th Amendment have also been raised in cases of gender identity. In several cases involving harassment and discrimination against LGBTQ students, courts have relied upon the Equal Protection Clause to impose a duty on schools to protect transgender students from harassment on an equal basis with other students. Courts have recognized that schools must balance the need to support transgender students while ensuring the safety and comfort of all students. Specifically, courts have held that discrimination against transgender students is discrimination on the basis of sex, in violation of Title IX and/or the Equal Protection Clause.

COURT DECISIONS INVOLVING EMPLOYMENT AND TRANSGENDER PERSONS

In 2007, a transgender employee sued her former employer after being told the reason for her termination was her using the female restroom even though she still had male genitalia.5 She alleged that her termination was for being transgender and failing to conform to the expectations of stereotypical male behavior.6 The trial court granted the employer’s motion for summary judgment, holding that transgender persons were not a protected class. The 10th Circuit Court of Appeals affirmed the district court’s decision, holding that discrimination based on a person’s status as transgender was not discrimination “because of sex” under Title VII of the 1964 Civil Rights Act (Title VII) and concluding that transgender individuals were not members of a protected class under the Equal Protection Clause.7 The court noted the vast majority of federal courts addressing the issue had concluded that Title VII’s prohibition on sex discrimination means only that it is unlawful to discriminate against women because they are women and men because they are men.8

Ten years later, Kimberly Hively filed a claim under Title VII stating that she suffered discrimination when her community college employer terminated her employment because she was a lesbian.9 Hively argued that if she had been a man married to or dating a woman, the employer “would not have refused to promote her and would not have fired her.”10 Concluding “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,” the court held that discrimination against a woman for being a lesbian was sex discrimination in violation of Title VII.11

In 2020, the United States Supreme Court consolidated three employment cases that involved either a gay or transgender person who was fired due to their gay or transgender status.12 In all three cases, the employer was alleged to have fired long-time employees simply because the employee was gay or transgendered.13 In the majority opinion, Justice Gorsuch noted that Title VII outlawed discrimination on the basis of sex and stated, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”14 The employers in Bostock argued that based on the meaning of the word “sex” when Title VII was enacted in 1964, the term “sex” refers to a person’s status as either biologically male or female.15However, as outlined in previous cases, the issue is not the meaning of the term “sex” but the law’s prohibition of actions taken “because of” an employee’s sex.16 Ultimately, the court concluded that “an individual’s homosexuality or transgender status is not relevant to employment decisions” because “it is impossible to discriminate against a person for being homosexual or transgender without discrimination against the individual based on sex.”17Bostock makes it clear that Title VII’s protections apply to an employee’s sexual orientation or transgender status.18

While the issue of transgender students was not before the court in Bostock, Justice Alito’s dissent recognized that similar issues have arisen under Title IX and noted several circuit court cases that were facing the issue of students barred from using a bathroom based on their biological sex versus the sex with which they identify.19 Likewise, Justice Alito’s dissent also raised the issue of transgender individuals participating in women’s sports.20

TITLE IX CASES

Title IX provides, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance …”21 All Oklahoma public schools, including charter schools, receive federal financial assistance and are thus subject to TitleIX. It is well established that Title IX is a source of individual rights for alleged sex discrimination, including sexual harassment.22When considering cases of alleged discrimination under Title IX, courts have routinely considered the same legal analysis as Title VII cases.23

Prior to the United States Supreme Court decision in Bostock, several federal appellate courts and district courts were addressing the issue of transgender students in school, specifically as to the use of particular bathrooms. The United States Department of Education (DOE) attempted to enjoin a school district from excluding a transgender girl from using the girls’ restroom.24 The trial court granted the DOE’s request for a preliminary injunction, and the school district sought a stay on appeal.25 The 6th Circuit Court of Appeals concluded the school district was not likely to succeed on the claim because Title IX prohibits discrimination based on sex stereotyping and gender nonconformity.26

In 2017, the 7th Circuit Court of Appeals upheld a trial court’s grant of an injunction prohibiting a school district from denying a student whowas born female but identified as male from using the girls’ bathroom or a single-occupancy bathroom.27Relying in part on determinations of other courts that had concluded that transgender employees were protected by Title VII, the court determined that discrimination on the basis of gender identity of students is likewise “sex” discrimination, which is prohibited by Title IX.28 In considering the plaintiff’s Equal Protection Clause claim, the court specifically rejected the school district’s argument about protecting the privacy of other students.29After the Bostock decision, two appellate courts cited Bostock to reach the same conclusion, holding that Title IX protects transgender students from discrimination based on gender identity.

Drew Adams was identified as female at birth and in eighth grade identified himself as male.30 In high school, he transitioned by cutting his hair short, wearing more masculine clothing, binding his chest to flatten his breast tissue, taking hormones to stop his menstrual cycle and masculinize his body and ultimately having a bilateral mastectomy to remove his breast tissue.31 In ninth grade, he used the boys’ bathroom for six weeks until two female students complained to the administration they had seen him entering the boys’ bathroom. After the complaint, the school district’s administrators gave him a choice of using the girls’ bathroom or using a single-stall gender neutral bathroom.32 Unsatisfied with these options, he sued the school district, alleging the school district violated his right to equal protection and his rights under Title IX by prohibiting him from using the boys’ bathroom at school.33

In the first decision by the 11th Circuit three-judge panel, the court concluded that the school district’s bathroom policy served an important governmental interest in protecting student privacy but was arbitrary in its administration and thus not sufficiently related to the indicated governmental interest.34 Relying on Bostock, the court also concluded that Title IX prohibits discrimination against a transgender person because such discrimination is on the basis of sex.35

In its revised decision, the panel’s previous opinion was vacated and replaced in “an effort to get broader support among our colleagues …”36 The revised opinion does not discuss Mr. Adams’ Title IX claim and solely addresses one ground under the Equal Protection Clause. Accepting as legitimate the government interest of student bodily privacy when using the restrooms by maintaining sex-separate restrooms, the court concluded the school district’s bathroom policy failed because it was based on the student’s sex indicated on the student’s enrollment documents, even if the student later provided documents showing a different sex. Thus, “The bathroom policy does not apply to all transgender students equally.”37 The court also concluded the policy was impermissibly arbitrary because the school district refused to change any official records or consider any other government documents reflecting a student’s sex after the student enrolled.38 In discussing the harm Mr. Adams suffered, the court recognized the stigmatization and shame he experienced from not being permitted to use the boys’ restroom while at school.

Twenty-two states and Washington, D.C., filed amicus curiae briefs in support of Mr. Adams. Conversely, 18 other states, including Oklahoma, filed an amicus curiaebrief in support of the school district’s policy preventing the transgender student from using the boys’ bathroom. The 11th Circuit granted rehearing en banc and conducted oral argument on Feb. 22, 2022. The United States Department of Justice was granted leave to appear and participated in oral argument in support of Drew Adams’ claims. A ruling should be forthcoming.

Shortly after the initial 11th Circuit decision in Adams, the 4th Circuit issued a decision in Grimm v. Gloucester Cnty. Sch. Bd.39 In 2015, Gavin Grimm, then a student at Gloucester County High School whose biological sex is female but who identified as male, sued the Gloucester County School Board alleging violations of the Equal Protection Clause and Title IX. The school originally allowed him to use the boys’ bathroom, but after the board faced significant backlash from parents, it adopted a policy that students could only use the bathroom matching their biological sex.40 Mr. Grimm also alleged the board violated the Equal Protection Clause and Title IX by refusing to amend his school records despite amending his birth certificate to reflect that he was male.41

In 2020, the 4th Circuit ultimately determined the board’s bathroom policy violated Mr. Grimm’s equal protection rights because the bathroom policy was a sex-based classification and transgender persons are a quasi-suspect class. Thus, for the bathroom policy to withstand scrutiny, it must have been substantially related to a significant governmental interest. The board argued the policy was applied equally to all persons and was necessary to protect the privacy of all students. The court rejected these arguments and noted the information provided by both the board as well as various amici curiae, including other school boards and school administrators, did not support the argument that the privacy of other students was impacted in any way by allowing transgender students to use the bathroom associated with their gender identity.42

As to Mr. Grimm’s Title IX claims, the court concluded, relying on Bostock, that a bathroom policy prohibiting a transgender student from using the bathroom applicable to their gender identity constitutes discrimination on the basis of sex.43 In determining that Mr. Grimm had suffered harm as a result of the bathroom policy, the court relied on this country’s history of racially segregated bathrooms and concluded, “The stigma of being forced to use a separate restroom is likewise sufficient to constitute harm under Title IX.”44 The court acknowledged that Title IX allows for separate toilet, locker room and shower facilities on the basis of sex and reasoned thatMr.Grimm was not challenging the existence of sex-segregated bathrooms but his exclusion from the sex-segregated bathroom corresponding with his gender identity.45

Other courts have also addressed the issue of transgender students and school bathroom policies, where the school policy allowed transgender students to use the bathroom based on their gender identity rather than their biological sex. Cisgender46 students brought a lawsuit against the school district seeking a preliminary injunction against the school district’s policy of allowing transgender students access to bathrooms and locker rooms consistent with their gender identity, alleging the policy violated their rights and Title IX.47 The court denied the request for a preliminary injunction, finding that the school district’s policy was thoughtful and carefully tailored to address real issues while maintaining a safe and respectful learning environment for cisgender and transgender students.48 Likewise, the 9th Circuit concluded that cisgender students’ Title IX and constitutional rights were not violated by the school district’s policy that allowed transgender students to use school bathrooms and locker rooms that correspond with their gender identity.49

Moreover, public schools are facing lawsuits for substantial monetary damages for alleged discrimination against transgender students due to excluding transgender students from bathrooms corresponding with their gender identity. In December 2021, a Missouri jury found that a school district discriminated against a transgender male student by denying him the use of the boys’ bathroom and locker rooms and awarded him $4,000,000 in damages.50

OTHER ISSUES

As evidenced by these cases, public school districts throughout the nation continue to struggle with issues regarding transgender students at school. For the most part, public schools haveadopted gender-neutral dress codes and have allowed transgender students to change their legal name or gender with appropriate documentation. Public schools have also generally provided for transgender and gender nonconforming students to be addressed by a name and pronoun corresponding to their gender identity regardless of whether the student has obtained a court-ordered name or gender change. These students are treated like other students who are allowed to use a nickname or preferred name.

Every Oklahoma school district is required to have policies to prevent bullying. A school district’s bullying and nondiscrimination policies should prohibit harassment and discrimination against students based on the student’s sexual orientation as well as gender identity and/or expression, address appropriate accommodations, establish consequences for those who harass and discriminate and set a tone allowing students to feel safe to report harassment.

On March 30, 2022, Gov. Kevin Stitt signed into law Senate Bill 2, which prohibits transgender women or girls from competing in athletics sponsored by public schools, colleges or universities. The new law provides for a private cause of action for injunctive relief as well as monetary damages against any school that allows a biological male to participate on a girls sports team.51

Similar laws are under attack in other states. A transgender female student in West Virginia sued the West Virginia State Board of Education and her school district after being informed she would not be permitted to join the cross country and track teams based on a statute that prevents males from participating on athletic teams for females, women or girls. The student challenged the law as violating Title IX and the Equal Protection Clause. In denying the motions to dismiss filed by both the Harrison County Board of Education and the West Virginia Board of Education, thecourt noted that the United States Supreme Court in Bostock ruled that discrimination on the basis of a person’s transgender status is discrimination on the basis of sex.52

Another issue many public schools have addressed concerns gay rights or gay/straight student organizations on campus. The Equal Access Act (EAA) applies to public secondary schools that receive federal financial assistance and have a limited open forum.53 The EAA requires public schools to provide equal access to and prohibit discrimination against secondary students desiring to conduct meetings within a school district’s limited open forum on the basis of the religious, political, philosophical or other content of the speech at such meetings.54 A secondary school creates a limited open forum whenever it allows an opportunity for one or more noncurricular-related student groups to meet on school premises during noninstructional time.55The EAA is not to be construed to limit the school district’s authority to maintain order and discipline on school premises, protect the well-being of students and staff and assure that attendance of students at meetings is voluntary.56

The majority of courts addressing student-led gay rights or gay/straight organizations seeking recognition from a public secondary school have held that the group must be recognized.57 Where the stated purpose of the organization included promoting tolerance and acceptance of students regardless of sexual orientation, creating a safe and respectful learning environment and working with the school administration and other school clubs to end prejudice and harassment, the court found that the group had to be recognized by the school district.58 However, a school district’s denial of a club’s application based on the fact the club’s website included links to websites with obscene and sexually explicit material and the club’s stated goal of educating students as to safe sex directly interfered with the school’s
“abstinence only” policy.59

CONCLUSION

Those courts that have considered the issue of Title IX and transgender students have concluded that discrimination on the basis of sexual orientation and gender identity constitutes discrimination on the basis of sex and is prohibited by Title IX as well as the Equal Protection Clause. Neither Oklahoma courts nor the 10th Circuit Court of Appeals has ruled on the rights of Oklahoma’s transgender students with respect to the use of bathrooms and locker rooms. On April 23, 2022, in response to a request from Stillwater Public Schools, State Superintendent of Public Instruction Joy Hofmeister requested an attorney general’s opinion from Oklahoma Attorney General John O’Connor. The request specifically relates to the usage of bathroom facilities within the school district based on a student’s gender identity.

In May 2022, Oklahoma enacted a new provision of law that requires students to utilize multiple occupancy restrooms or changing areas based on their sex as identified on the student’s original birth certificate rather than their gender identity.60 If the legislation is challenged in court, the 10th Circuit may have an opportunity to address the questions already addressed by the 3rd, 4th, 6th, 7th, 9th and 11th Circuit Courts of Appeals. Depending on the 11th Circuit’s en banc decision in Adams, it is possible the United States Supreme Court will be asked to weigh in if a split in the circuits develops. Until there is a definitive case in this area, the law remains uncertain in the 10th Circuit.

 

ABOUT THE AUTHORS

Laura L. Holmes was admitted to the Oklahoma Bar in 1991 and has practiced education law since 1992. Ms. Holmes is currently a shareholder with the Center for Education Law, a private law firm that limits its practice to the representation of schools in Oklahoma.

Laura L. Holmgren-Ganz was admitted to the Oklahoma Bar in 1987 and has practiced civil litigation, employment, constitutional and school law since 1987. Ms. Holmgren-Ganz is currently of counsel with the Center for Education Law, a private law firm that limits its practice to the representation of schools in Oklahoma.

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1. Trevor Project, “National Survey on LGBTQ Youth Mental Health 2021,” https://bit.ly/3zyBhLq.
2. SB 2, 2022 Legislative Session.
3. The United States Department of Education is currently working on revisions to Title IX’s regulations. According to The Washington Post, draft text of the regulations indicates that discrimination on the basis of sex will be defined to include sexual orientation and gender identity. “New Title IX Rules Set to Assert Rights of Transgender Students,” Laura Meckler, The Washington Post, March 30, 2022.
4. 20U.S.C. 1681.
5. Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1219 (10th Cir. 2007). Etsitty is no longer a valid precedent and is recognized as being overruled by Bostock v. Clayton County, GA, 140 S.Ct. 1731 (2020). Tudor v. Southeastern Oklahoma State Univ., 13 F.4th 1019 (10th Cir. 2021).
6. Id.at 1219-1220.
7. Id.at 1221-1222.
8. Id.at 1222.
9. Hively,853F.3d339,341(7thCir.2017).
10. Id.at 345.
11. Id.at 351.
12. Bostock v. Clayton County, GA, 140 S.Ct. 1731 (2020). The three cases involved anappeal from the 11th Circuit Court of Appeals (Bostock v. Clayton County, GA, 723Fed.Appx. 964, affm’d and rehr’g en banc denied, 894 F.3d 1335 (2018)), 2nd CircuitCourtofAppeals(AltitudeExpressv.Zarda,883F.3d100(2018))and6thCircuitCourtof Appeals(R.G. and G.R.Harris Funeral Homes,Inc. v.EEOC, 884 F.3d560 (2018)).
13. Id.at 1734.
14. Id.at 1737.
15. Id.at 1739.
16. Id.
17. Id. at 1741.
18. Id.
19. Id.at 1779-1780.
20. Id.
21. 20U.S.C.A. §1681(a).
22. Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 285, 118 S.Ct. 1989, 1997, 141 L.Ed.2d 277 (1998); Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 119 S.Ct. 1661, 1671-1672, 143 L.Ed.2d 839 (1999).
23. Gossett v. Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1176 (10th Cir. 2001) (Courts have generally assessed Title IX discrimination claims under the same legal analysis as Title VII discrimination claims.)
24. Dodds v. U.S. Dep’t of Educ., 845 F.3d 217 (6th Cir. 2016) (per curiam).
25. Id.at 220.
26. Id. at 221–22.
27. Whitakerv.KenoshaUnifiedSch.Dist.,858F.3d1034(7thCir.2017).
28. Id. at1050.
29. Id.at 1052.
30. Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1305 (11th Cir. 2020), vacated and superseded by 3 F.4th 1299 (11th Cir. 2021) petition for reh’g en banc pending granted 9 F.4th 1369 (11th Cir. 2021).
31. Id.at 1292.
32. Id.at 1293.
33. Id.at 1295.
34. Id.at 1297-1299.
35. Id.at 1304-1305.
36. Id.at 1303-1304.
37. Id. at 1309.
38. Id.at 1310.
39. 39. Grimm v. Gloucester County Sch. Board, 972 F.3d 586, 593 (4th Cir. 2020), rehr’g en banc den’d, 976 F.3d 399 (4th Cir. 2020), cert. den’d 141 S.Ct. 2878 (2021). In response to the initial lawsuit in 2015, the board filed a motion to dismiss, and the trial court denied the request for preliminary injunction and dismissed the Title IX claim. 132 F.Supp.3d 376 (E.D. VA. 2015). Upon an interlocutory appeal, the 4th Circuit reversed the trial court. 822 F.3d 709 (4th Cir. 2016), rehr’g en banc den’d, 824 F.3d 450 (4th Cir. 2016). The board sought certiorari in the United States Supreme Court, which granted certiorari and scheduled the case for oral argument. However, based on the United States Department of Education’s withdrawal of its guidance document, which provided that schools must treat transgender students consistent with their gender identity, the Supreme Court vacated the 4th Circuit’s opinion and remanded the case for reconsideration based on the change in the Department of Education’s guidance. U.S., 137 S.Ct. 1239, 197 L.Ed. 2d 460 (2017). Mr. Grimm, who had graduated high school, then filed an amended complaint that sought nominal damages and declaratory relief and updated the facts. The board again sought dismissal of the complaint for failure to state a claim, and the trial court denied the board’s motion to dismiss, concluding that Mr. Grimm’s claims of discrimination on the basis of transgender status sufficiently pled sex discrimination. 302 F.Supp. 3d 730 (E.D. Va. 2018). The board and Mr. Grimm subsequently filed cross-motions for summary judgment. The district court ruled in Mr. Grimm’s favor and granted him summary judgment on both his Title IX and equal protection claims regarding the board’s bathroom policy and its refusal to amend his school records to reflect that he was male. The board then appealed.
40. The board’s bathroom policy provided that the school district would “provide male and female restrooms and locker room facilities in its schools, and the use of said facilities shall be limited to the corresponding biological genders.” Grimm, 972 F.3d at 608.
41. Id.at 593.
42. Id.at 613-615.
43. Id.at 616.
44. Id.at 617.
45. Id.at 618.
46. Cisgender persons are those who have a gender identity that is congruent with one’s biological sex. Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 522 (3rd Cir. 2018) cert. den’d., 139 S.Ct. 2636 (2019).
47. Id.
48. Id.at 537-538.
49. Parents for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020).
50. R.M.A. v. Blue Springs Sch. Dist., Circuit Court of Jackson County, Missouri, Case No. 1516- CV20874.
51. 2022 Legislative Session, Senate Bill 2, to be codified at 70 O.S. 27-106.
52. B.P.J. v. West Virginia Board of Education, S.D. W. Va., Case No. CIV-21-00316, Memorandum Opinion and Order, Dec. 1, 2021 (Doc. No. 129), pp. 7-8.
53. 20U.S.C.A. §4071(a).
54. Id.
55. 20U.S.C.A. §4071(b).
56. 20U.S.C.A. §4071(f).
57. Gay-Straight Alliance of Okeechobee High School v. School Board of Okeechobee County, 483 F.Supp. 2d 1224, 1227-1228 (S.D.Fla. 2007).
58. Id.at 1229.
59. Caudillov. Lubbock Ind. Sch.Dist.,311 F.Supp.2d 550, 564(N.D. Tex.2004).
60. 70 O.S. §1-125.