Transgender Students in South Dakota's Public Schools - An Update

On February 22, 2017, the Trump administration’s Departments of Justice and Education rescinded the Obama Administration’s May 2016 guidance, which advised school districts that transgender students were protected under Title IX.

Here is a quick update regarding the current status of transgender law in public school districts since the Trump administration’s rescission.

G.G. v. Gloucester County School Board

A discussion of the impact of the Trump administration’s rescission of the Obama administration’s May 2016 guidance must begin with a review of G.G. v. Gloucester School Board.

Gavin Grimm is a female-to-male transgender high school student who attends the Gloucester High School in Virginia. He asked for (and received) the administration’s permission to use the boys’ bathrooms at GHS. Later, the school board adopted a policy that transgender students could only use single-stall bathrooms assigned to students that share the transgender student’s biological gender. After the policy was adopted, the administration refused to let Grimm continue to use the boys’ bathrooms.

Grimm challenged the policy, but the school district refused to make a change. As a result, a lawsuit was filed on Grimm’s behalf under Title IX and the Fourteenth Amendment’s Equal Protection Clause. The judge ultimately rejected Grimm’s request which would have allowed him to use the boys’ restroom.

Grimm appealed the judge’s decision to the U.S. Court of Appeals for the Fourth Circuit which reversed and found that Title IX’s section that allows schools to provide segregated bathroom facilities based on sex is “silent as to how a school should determine whether a transgender individual is male or female, for the purpose of access to sex-segregated restrooms.”

Ultimately, after further legal wrangling, the original judge issued an order granting an injunction and allowed Grimm to use the boys’ bathroom.  However, the U.S. Supreme Court issued a stay which stopped the injunction.

The Supreme Court scheduled oral argument in the case for March 28, 2017. However, after the Trump administration formally rescinded the Obama administration’s guidance, the Supreme Court decided not to hear the appeal and the Fourth Circuit’s earlier decision in Grimm’s favor was dissolved.

The judges in the Grimm case and a few other cases that are pending throughout the country relied on the Obama administration’s interpretation of Title IX. However, since the Trump administration’s rescission of this interpretation, it is not clear how these cases will be decided.

So Where Are We After the G.G. Case?

We continue to be in a state of legal confusion regarding this issue. However, what we do know is that there is no final decision from the federal courts that requires school districts to allow transgender students to use bathrooms consistent with the gender with which they identify.