On June 15, 2020, in the consolidated matters of Bostock v. Clayton County, Georgia, Altitude Express v. Zarda, and R.G.& G.R. Harris Funeral Homes v. EEOC, et al, the United States Supreme Court ruled in a 6-3 decision that an employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Bostock began participating in a gay recreational softball league. Shortly thereafter, Bostock received criticism for his participation in the league and for his sexual orientation and identity generally. Shortly afterward, Clayton County terminated his employment. In Altitude Express, Zarda was fired days after mentioning he was gay. In Harris, an employee was fired after the employee informed the employer that the employee planned to live and work full time as a woman. The U.S. Supreme Court held that Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin.” Looking to the ordinary public meaning of each word and phrase comprising that provision, the Court interpreted it to mean that an employer violates Title VII when it intentionally fires an individual employee based, at least in part, on sex. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex—the very practice Title VII prohibits in all manifestations. While it was argued that Title VII was never intended to be read with such a broad brushstroke, the Court found that the use of the word sex was unambiguous and supported its holding.
Recently, in State ex. rel CNN, Inc. v. Bellbrook-Sugarcreek Local School Dist., 2019-Ohio-4187, the Second Appellate District ruled that the death of a student does not remove the legal protections of the confidentiality of student records.
In August 2019, an adult gunman killed nine people and injured twenty-seven others in a mass shooting in Dayton. Following the incident, several media outlets requested public records of the gunman’s educational records, including disciplinary records, from the School District from which he graduated.
The district released directory information concerning the student but declined to release any other records. The media outlets sued, filing a mandamus action seeking the release of the records. Ohio Revised Code (R.C.) Section 149.43 requires a public agency to release public records upon request, unless an exception applies. That section provides that records are not “public records” subject to release if a state or federal law prohibits the release of them.
The district argued that the Ohio Student Privacy Act limits access to records concerning students, specifically, that “[n]o person shall release, or permit access to personally identifiable information other than directory information concerning any student attending a public school … without the written consent of each such student who is eighteen years of age or older.”
The court concluded that, based on the plain language of R.C. 149.43, the district is barred from releasing the records requested, rejecting the news media’s argument that the district was compelled to release the requested records because the former student’s right to privacy expired with his death. The case has been appealed to the Ohio Supreme Court.
Attorney General Dave Yost filed a brief to the Supreme Court of Ohio. His brief is in support of the media outlets that are suing in order to have rights to view the student’s records. Yost argued that neither Family Educational Rights and Privacy Act nor Ohio Student Privacy Acts protects the records of students who die after becoming an adult. A local TV station and other news organizations filed briefs amicus curiae in support of CNN.
Yost’s brief states that the attorney general’s office has a duty to “ensure transparency in all levels of government.” One of the duties involved is to provide training and guidance on Ohio’s Sunshine Laws. This duty, the brief reads, is being directly impacted because the Public Records Act is being violated in not allowing access to the student records
On August 9, 2019, a federal judge in Virginia ruled in favor of a transgender student in holding that a school district’s policy violated his rights under Title IX and the Equal Protection Clause. The Grimm v. Gloucester County School Board case stemmed from a school district’s policy requiring students to use restrooms and locker rooms that corresponded to their “biological genders.” The district provided alternative facilities for transgender students.
The court initially ruled that claims of discrimination on the basis of transgender status for gender-stereotyping are actionable under Title IX. The court further found that denying Grimm the ability to access the facilities corresponding with his gender identity were not only actionable but did in fact result in a violation of Title IX and the Equal Protection Clause.
The Board argued that it had not engaged in discrimination and that Grimm had not suffered any harm as a result of its policy. The court found this argument to be unconvincing. The court determined that the district’s policy subjected transgender students to discriminatory treatment by excluding them from places similarly situated students had access to. Further, Grimm did suffer emotional harm due to the fact he was unable to comfortably access restrooms at school. Grimm was further subjected to harm when the school district refused to update his school records in order to reflect his male identity. Failure to do so has negated his male identity and marked him different than other males any time he provided a copy of his transcript to another entity.
This ultimately led the court to grant a permanent injunction against the school district’s restroom and locker room policy. The injunction further awarded Gavin nominal damages and ordered the school district to change his school records to conform with his gender identity.
While the decision from the Fourth Circuit Court of Appeals is not controlling on Ohio school districts, the Sixth Circuit did rule on a very similar case back in 2016. In Dodds v. United States Department of Education, the Sixth Circuit Court of Appeals agreed with a lower district court decision and determined that an eleven-year-old transgender girl had a strong likelihood of success in her claims against the school district and should therefore be allowed to use the school restrooms conforming with her gender identity.
It is important to note the decision in Dodds relied on guidance from the United States Department of Education that has since been rescinded. The current position of the USDOE is that they will not accept any complaints alleging a transgender student was denied access to restrooms and locker rooms and will only accept complaints of harassment or bullying for failing to conform to sex-based stereotypes. Thus, in light of this new guidance, it remains unclear how an Ohio court would rule on this issue today.
What this means for your district:
The issue of providing accommodations to transgender students remains unclear and is a matter that will doubtless be subject to further litigation before any clarity is provided. Districts should proceed with caution when faced with these issues. For additional advice on handling requests for accommodations for transgender students, please contact an Ennis Britton attorney for assistance.