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By: Lily Crespo Esq.
Quick Takeaway: The Supreme Court’s decision in Bostock, is a good reference point for bathrooms/locker rooms, when taken into context with the guidance on this topic in OCR’s “Dear Educator Letter’ issued on June 23, 2021. OCR was explicit in its interpretation of the Bostock ruling, as well as its clarification that the Supreme Court’s decision in Bostock applies to the Department’s interpretation of Title IX. The Court held, “its impossible to discriminate against a person because of their sexual orientation or gender identity without discrimination against that individual based on sex.” OCR has stated that reasoning applies regardless of whether the individual is an adult in a workplace or a student in school.
What happened: Back in August of last year, the 11th circuit ruled that “A public school may not punish its students for gender nonconformity…Neither may a public-school harm transgender students by establishing arbitrary, separate rules for their restroom use. After the U.S. Supreme Court declined to review the case, the Eleventh Circuit granted en banc rehearing in Adams v. School Board of St. Johns County, a case presenting the question whether a school board violated the constitutional and Title IX rights of a transgender student by barring her from using the boys’ restroom.
What the decision to re-hear the case means: This is another twist in this Florida case, as the last action by the Court was to revise the opinion stripping Title IX references from the decision. It will be interesting to see how the entire panel handles this case and what language will or not be included in the written opinion.
The grant of en banc rehearing might ultimately tee the issue up for Supreme Court review and thus enable the Court to minimize the damage from its serious error in failing to grant certiorari in the Fourth Circuit case of Gloucester County School Board v. Grimm.” In the Grimm case, the 4th U.S. Court of Appeals concluded that a Virginia school district could not lawfully stop a biologically female trans-identified student from using boys’ bathrooms. In June, the Supreme Court refused to hear an appeal in the Grimm case, allowing the circuit court decision to stand.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Kevin, Megan, Beth, and Lily by email or at 406-542-1300 to discuss these issues.