SCHOOLS FACE LEGAL QUANDARY IN ADDRESSING LGBTQ ISSUES
In the persistent battle over issues related to sexual orientation and gender identity, public schools are frequently the battlegrounds. Tennessee public schools are no exception, and school officials have wrestled for years with such issues, particularly as they relate to transgender students. Conflicting legal authority now creates even more uncertainly over what to do in those typically difficult situations.
Like other states, Tennessee recently enacted laws directly or indirectly impacting LGBTQ individuals. Thus, public schools can run afoul of state law[1] if they allow any grade five through twelve (5-12) transgender student to participate in an interscholastic activity or event designated for a sex that does not align with the student’s sex at the time of birth, as indicated on the student’s original birth certificate.[2] A similar law passed in West Virginia was challenged by a student who prevailed at the injunctive relief stage[3]. Determining that the student demonstrated a likelihood of success on the merits of both her equal protection and Title IX claims, the U.S. District Court judge specifically ordered on July 21, 2021, that “While this case is pending, Defendants are enjoined from enforcing [the state law] against B.P.J. She will be permitted to sign up for and participate in school athletics in the same way as her girl classmates.” Whether a similar result would occur in Tennessee is not now known, but in a 2016 opinion, the Sixth Circuit Court of Appeals upheld an injunction in a case filed to determine whether transgender students are entitled to access restrooms for their identified gender rather than their biological gender at birth.[4] The Court stated,
Under settled law in this Circuit, gender nonconformity, as defined in Smith v. City of Salem, is an individual’s “fail[ure] to act and/or identify with his or her gender . . . . Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.” 378 F.3d 566, 575 (6th Cir. 2004)(other citations omitted).[5]
Tennessee is subject to Sixth Circuit rulings, and though this ruling was made at the injunctive stage, the Court seemingly signaled that actions taken on the basis of gender non-conforming behavior is discriminatory. Nevertheless, as a result of two recent statutory changes related to restrooms and other similar areas, Tennessee school officials are presumably less likely to permit transgender students to use a restroom, dressing room, shower or other similar facility based on their preferred gender. One statute requires that any public or private entity or business that is open to the general public and that permits a member of either biological sex to use any of those areas within the building or facility post easily visible notices of specific size, color and wording at the entrance of each restroom or other similar area where a member of the public would have a reasonable expectation of privacy, if.[6] Finding that the law infringes on business owners’ right to free speech and freedom of association, the U.S. District Judge issued a preliminary injunction blocking it.[7] At least one other lawsuit challenging the law has been filed in federal district court and more may follow.
Potentially more impactful on public schools is new statutory language that requires school officials to provide a reasonable accommodation to a student, teacher or employee who requests greater privacy when using a multi-occupancy restroom or changing facility in a public school building or when using multi-occupancy sleeping quarters when attending a public school-sponsored activity if the restroom, changing facility or sleeping quarters is designated for the student’s, teacher’s, or employee’s sex.[8] The student, teacher, employee, or parent of a student under 18 may appeal denial of such a request and may exercise a private right of action against the LEA or public school if a member of the opposite sex is encountered in one of those areas and the LEA or public school intentionally allowed a member of the opposite sex to enter the area. Since the law defines “sex” as “a person’s immutable biological sex as determined by anatomy and genetics existing at the time of birth,” its clear goal is to discourage school officials from permitting transgender individuals from using facilities that correspond to their gender identity. The statute has already been challenged in federal district court, and on August 5, 2021, the District Court Judge denied a motion for a temporary restraining order to block enforcement of the law but indicated that a hearing on the request for a preliminary injunction will be conducted as soon as reasonably feasible.[9]
Requests from transgender individuals, particularly students, regarding use of restrooms are not new, and Tennessee school officials have long struggled with decisions to accommodate such requests. Typically, the result was permitting or sometimes requiring the transgender person to use either a single-occupancy restroom or the preferred restroom. The expectation—and hope—of many was that the U.S. Supreme Court might provide clarity in the case of Grimm v Gloucester County School Board.[10] On June 28, 2021, the Court announced its decision not to hear the school board’s appeal in that case, leaving in place the Fourth Circuit’s published opinion that transgender students who use restrooms based on their gender identity have equal protection under the Fourteenth Amendment and protection under Title IX’s prohibition of sex-based discrimination.[11] While Tennessee is not subject to Fourth Circuit rulings, the Supreme Court’s decision not to hear the appeal makes the ruling especially persuasive.
After the Supreme Court issued its June 15, 2020 opinion in Bostock v. Clayton County[12] that mistreatment based on sexual orientation or gender identity violates the ban against sex discrimination under Title VII of the Civil Rights Act, the legal debate as to whether the Court’s reasoning also applies under Title IX of the Education Amendments of 1972 intensified. In a case similar to Grimm, the Eleventh Circuit Court of Appeals ruled similarly.[13] In its Title IX analysis, the Court specifically stated that,
Our analysis of Mr. Adams’s Title IX claim benefits from the Supreme Court’s recent decision in Bostock v. Clayton County, 590 U.S. ___, 140 S. Ct. 1731 (2020). Bostock announced that Title VII’s prohibition on sex discrimination also forbids discrimination based on transgender status. Id.at 1737. The Court instructed that “it is impossible to discriminate against a person for being . . . transgender without discriminating against that individual based on sex.” Id. at 1741[14]
Rulings in cases like these are consistent with other federal court opinions that provide protection for transgender students under the Fourteenth Amendment and/or under Title IX.[15] Additionally, on March 26, 2021, the U.S. Department of Justice, Civil Rights Division, issued a memorandum analyzing the application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972.[16] And on June 22, 2021, the Office for Civil Rights, U.S. Department of Education published an interpretation to guide the department in its enforcement of Title IX with respect to discrimination based on sexual orientation and gender identity in light of Bostock v. Clayton County.[17] The determination of both federal departments is that Title IX’s prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity. However, the Tennessee Attorney General published a letter to President Biden, dated July 7, 2021 and signed by twenty other State Attorneys General, asserts that those federal guidance documents misstate the law and improperly extend Bostock.[18]
Thus, school districts in Tennessee face the quandary of conflicting legal authority and legal maneuvering surrounding issues of sexual orientation and gender identity. Eventually, the law will be settled. Until then, Tennessee school officials must continue to make difficult decisions and potentially deal with the legal battles that ensue.
[1] 2021 Tenn. Pub. Acts 40.
[2] Tenn. Code Ann. § 68-3-203(d) (2021) provides that the sex of an individual shall not be changed on the original certificate of birth as a result of sex change surgery.
[3] B. P. J. v. W. Va. State Bd. of Educ., No. 2:21-cv-00316, 2021 U.S. Dist. LEXIS 135943, at *4 (S.D. W. Va. July 21, 2021).
[4] Dodds v. United States Dep't of Educ., 845 F.3d 217 (6th Cir. 2016).
[5] Id. at 221.
[6] 2021 Tenn. Pub. Acts 453.
[7] Bongo Prods., LLC v. Lawrence, No. 3:21-cv-00490, 20221 U.S. Dist. LEXIS 128262, at *44 (M.D. Tenn. July 9, 2021).
[8] 2021 Tenn. Pub. Acts 452.
[9] A.S. v. Lee, No. 3:21-cv-00600, 2021 U.S. Dist. LEXIS 146899 at *27 (M.D. Aug. 5, 2021).
[10] Grimm v Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020), cert. denied, 2021 U.S. LEXIS 3441 (U.S. June 28, 2021)(No. 20-1163).
[11] Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (2018).
[12] Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020).
[13] Adams v. Sch. Bd., 968 F.3d 1286 (11th Cir. 2020).
[14] Id. at 1304-05.
[15] See, e.g., Whitaker v. Kenosha Unified Sch. Dist., 858 F.3d. 1034 (7th Cir. 2017), cert. dismissed, 2018 U.S. LEXIS 1633 (U.S. Mar. 5, 2018)(No. 17-301).
[16] U.S. Dept. of Justice, Memorandum for Application of Bostock v. Clayton County to Title IX of the Education Amendments of 1972, https://www.justice.gov/crt/page/file/1383026/download.
[17] U.S. Dept. of Ed., Federal Register Notice of Interpretation: Enforcement of Title IX of the Education Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostick v. Clayton County, https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-noi.pdf.
[18] TN Office of the A.G., Letter Re: Administrative Action Related to Bostock v. Clayton County, https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2021/pr21-23-letter.pdf.
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Debra D. Owen joined the firm of Jackson Shields Yeiser Holt Owen & Bryant after serving seven years as staff attorney for the Jackson-Madison County School System. Prior to becoming a licensed attorney, she served twenty-eight years as a secondary classroom teacher in that same school system. The primary focus of her legal practice is school law, but she also represents clients in employment law matters. She is an experienced trainer/presenter and enjoys working with clients to utilize training and other initiatives to avoid becoming mired in litigation or other legal disputes. Debra is a Tennessee Rule 31 listed civil and family mediator.
