Restroom Policies for Transgender Students in Alabama

Legal Forum

Dr. Dave Dagley Professor Emeritus, University of Alabama and Dr. Amy Dagley Assistant Professor, University of Alabama at Birmingham

In 2016, CLAS School Leader published our first attempt to address legal issues surrounding transgender students and their use of restrooms, from a case involving a Virginia school district. G.G. ex rel. Grimm v. Gloucester County School Board, 822 F.3d 709 (4th Cir. 2016). The commentary was titled, “Appeals Court Looks at Transgender Students and Restroom Policy,” and was in CLAS School Leader Vol. 44, Issue No. 4, pp. 14-15 (2016). The student in this case was born female, but was in transition to being male, had lived nearly all facets of his live as a male, and was generally accepted by classmates as being male. He and his mother approached the high school administration for permission for him to use the boys’ restroom, to which administrators consented, for seven weeks with no incident. But members of the community learned of the situation, pressured the school board, and the board soon adopted a policy that use of restrooms and locker rooms “shall be limited to corresponding biological genders, and students with gender identity issues shall be provided an appropriate facility.” The school allowed the student to use existing singlesex restrooms (e.g., in the nurse’s office) while it converted an existing restroom to a suite of three unisex restrooms. The student in the above case, G.G., sued the school district under Title IX and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, arguing that he was discriminated against based on sex; while the unisex restrooms were available to all students, he was the only student in the school who was required to use them.

Title IX requires that “(no) person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The U.S. Department of Education released regulations for Title IX in 1975, which permitted the use of separate restrooms, locker rooms, and shower rooms on the basis of sex, but the regulations only stipulated that the facilities available to one sex must be comparable to the facilities available to the other sex and did not address transgender students. 34 C.F.R. § 106.33. In January 2015, the Office for Civil Rights (OCR) in the Department of Education issued an advisory letter designed to express how it interpreted how Title IX applied to transgender students. The letter stated, “When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.” Based upon the 2015 advisory letter, the Fourth Circuit Court of Appeal, with all members of the court participating in the decision (rather than the usual panel of only three judges), held, in a 51-page opinion, that Gloucester County School Board had violated G.G.’s rights under Title IX and the Equal Protection Clause. Grim v. Gloucester County Sch. Bd., 972 F.3d 486 (4th Cir. 2020) (en banc); appeal denied, 976 F.3d 399 (mem).

In 2020, we submitted a second commentary on a transgender/restroom case from a federal district court in Illinois. See, “Transgender Restrooms and Locker Rooms, Again,” CLAS School Leader Vol. 48, Issue No. 1, pp. 20-21, 23 (2020). The case was Students and Parents for Privacy v. School Directors of Township High School District 211, 377 F.Supp.3d 891 (N.D. Ill. 2019). The student involved was a biological male who was transitioning to being female, but it wasn’t the student who sued. This is an example of a lawsuit coming from the other direction. A local group organized against the policy, so that the lawsuit came from a community group who was against the policy to allow students to use restroom facilities in alignment with their claimed gender. The group considered the policy a “compelled affirmation policy,” because it affirmed students in their choice, but also created, they argued, the perception that students who were not in favor of the policy were intolerant or bigoted. The group’s lawsuit claimed discrimination against their children, because they had been subjected to a boy using the girls’ restroom. They included in their claims, that the policy violated Title IX, their children’s right to bodily privacy, the liberty right of parents to direct the upbringing of their children, the right to free exercise of religion, and the state’s Religious Freedom Restoration Act. In a sixteenpage opinion, this trial court dismissed two of the five claims (that the policy violated the students’ right to bodily integrity and that the policy violated the parents’ right to direct the upbringing of their children. The Title IX and two religious exercise claims were continued for trial.

Now, the Eleventh Circuit Court of Appeal, which has jurisdiction over federal cases from Alabama, Florida, and Mississippi, has addressed a Florida case regarding bathroom use by a transgender student for the third time. Adams ex rel. Kesper v. Sch. Bd. Of St Johns Cnty., 968 F.3d 1286 (11th Cir. 2020), aff’d 3 F.4th 1299 (11th Cir. 2021), overruled, Case no. 18-13592, 11th Cir., Filed 12/30/2022 (en banc). The student in this case was a transgender male, born female but in the process of transition to being male by the time he was in high school. He enrolled in the fourth grade as a female based on his birth certificate but identified as male by the eighth grade. He was then treated in most ways in the school as a male, except with regard to the use of a restroom. He was required to either use the girls’ multi-stall restroom or use a single-sex restroom. The board policy separated restroom usage, based upon the gender printed on the student’s original birth certificate. Using medical certificates and other documents, the student was able to obtain a substitute birth certificate regarding him as male, but the school district would not acknowledge it.

The student sued the school district, alleging sex discrimination under Title IX and alleging a violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The trial court found in favor of the student on both claims, and the appellate court agreed with the trial court in the first two trips to the higher court in 2020 and 2021. With regard to the Title IX claim, the trial court and the appeals court followed a lineage of cases under Title VII, which prohibits discrimination against transgender persons in the employment context, and a lineage of Title IX cases that acknowledges that transgender issues are about sex, bringing them under Title IX protection. Examination of Equal Protection claims precipitates a requirement that the school prove the necessity for the policy. At the lower levels of this case, the courts adopted the highest standard, which the school could not prove. Therefore, in the trial court and the first two trips to the appeals court, the student won, and the school district lost.

After the trial court and two trips to the appeals court, the circuit court of appeal accepted a request for a review by all the members of the court, not just a panel of three judges. At this latest stage, the full court voted (roughly 7-4) to overturn the earlier decisions. With regard to the application of Title IX, the court denied a violation of Title IX, because the regulations at the time specifically permitted sexseparated bathrooms. With regard to the Equal Protection Clause, the court deployed a lower standard for the school to prove its need for the policy, which the school was able to do.

Last year, the Legislature passed Alabama Act 2022290, H.322, which is codified as § 16-1-54 Code of Alabama (1975). That act required all K-12 public schools to designate multiple occupancy restrooms and changing areas to be used based upon biological sex. (The act also prohibits classroom discussion and instruction on sexual orientation or gender identity in grades K-5.) Under the Adams case, this act is still valid, but things could change. With a new administration, the U.S. Department of Education has released a draft of new proposed Title IX regulations, which arguably extend more rights to transgender schoolchildren. When new regulations are adopted, that change could foster a different interpretation of the application of Title IX to the issue.

As demonstrated, we now have at least two circuit courts of appeal which have opposite outcomes on the issue of transgender students and the restrooms they may or may not use. For illustration purposes, we have also included a recent case where parents in the community have brought suit because schools are attempting to both follow the law and also

deal with all students with kindness and support. With two completely different interpretations in the appellate courts about following the law, the Supreme Court will eventually have to settle the issue. In the meantime, school administrators and teachers should work with transgender students and their parents to quietly reach an accommodation that works for each individual child and each individual school. Of course, school personnel need to protect all students from bullying and harassment, and continue to treat all students with care, kindness, compassion, and dignity.

We offer one final thought. During this time of rapid change in rules regarding transgender students and restrooms we wonder if schools should have a policy at the school district level on the topic. If you don’t have one, should you resist the urge to pass one, until the Supreme Court provides direction? If you have one, should you suspend it until the Supreme Court rules? Those are topics of discussion with your school board attorney.