Cornell University Law School Social Science and Law

Social Science in Transgender Bathroom Cases: Examining G.G. v. Gloucester

Compiled by Aaron El Sabrout and Chantov McNamarah

Introduction and Case Summary

     The dispute in G.G. v. Gloucester County School Board centers around the right of a transgender high school student to use the school bathroom appropriate to his gender, and whether Title IX of the Education Amendments of 1972¹ bans discrimination on the basis of gender identity.

     In 2014 G.G., a transgender boy, transitioned socially and medically.² In accordance with his transition, he sought access to the boys’ bathroom at his high school.³ Initially, his school granted the request, and he used the restroom “without incident” for seven weeks.⁴ However, apparently some members of his community felt unhappy about this, and at a November 2014 school board meeting, he was barred from using the boys’ bathroom.⁵ In the words of the Fourth Circuit, many of the speakers at the school board meeting “displayed hostility” to G.G., “including by referring pointedly to him as a ‘young lady,’” and as a “freak,” and comparing him “to a person who thinks he is a ‘dog’ and wants to urinate on fire hydrants.”⁶ Members of the community also voiced a fear that allowing trans students to use the bathroom that comports with their gender identity “would lead to sexual assault in restrooms.”⁷

     G.G. sued the school board in the Eastern District of Virginia, alleging violations of Title IX and the Equal Protection Clause.⁸ From then, the case has had a lengthy history. G.G.’s case was dismissed before the district court for failure to state a claim under Title IX, because he allegedly failed to assert “sex” discrimination.⁹ He then appealed to the Fourth Circuit, which found that discrimination on the basis of “gender identity” was encompassed by “sex” discrimination under Title IX.¹⁰ In part, this ruling rested on an Obama administration guidance letter issued by the Department of Education, which stated that “a school generally must treat transgender students consistent with their gender identity.”¹¹ The school board then appealed to the Supreme Court, and was granted certiorari in October 2016.¹² However, before the Court could hear the case, the Trump administration withdrew the Department of Education guidance letter, and the Supreme Court remanded the case to the Fourth Circuit for reconsideration in light of the new guidance.¹³ At this point, G.G. had graduated high school, and based on this the school board filed a motion to dismiss, alleging that the case was now moot.¹⁴ The case is now on remand to the Eastern District of Virginia for consideration of the mootness issue.¹⁵

     For this project, we have examined a sample of the amicus curiae briefs filed before the Supreme Court, to understand how both student and school board articulated their arguments for the interpretation of Title IX. We note at the outset that there were two core issues articulated by the school board on appeal. First, there was an administrative law question of whether the Department of Education letter should be given deference under Auer v. Robbins¹⁶ as an agency interpretation of its own regulations.¹⁷ Second, there was the question of whether, regardless of deference, the agency interpretation of Title IX should be given effect.¹⁸ The question of agency deference was addressed extensively by briefs for the petitioner, but very little by briefs for the respondent.¹⁹ As such, we do not address it in much depth here.

     At the outset, we note the sheer number of amicus briefs filed in this case. Despite the fact that the Supreme Court refused to hear the case, which may leave the issue of whether Title IX covers trans students unresolved for some time,²⁰ people clearly care tremendously about this question. The case was litigated for the plaintiff with support from the ACLU, over 30 amicus briefs were filed before the Fourth Circuit and more than 70 were filed before the Supreme Court. 34 were for the plaintiff, 24 were for the school board, and two were “in support of neither party.” Some were filed by states, some by civil rights organizations, by trans rights organizations, by women’s rights organizations, and some were simply filed by interested private persons. We consider them in some depth below.

Definitions of Sex

     The first major point of departure for the briefs is the question of what the terms “sex,” “gender,” and “gender identity” mean.²¹

     Many of the briefs in support of the petitioner rely on the dictionary definition of sex as a decider.²² They rely overwhelmingly rely on definitions of originating in religious texts²³--in fact, one brief is devoted almost in its entirety to considering major religions’ perceptions of gender.²⁴ They also often rely on generic notions of eternal cultural wisdom,²⁵ while simultaneously acknowledging that other cultures have different epistemologies of gender.²⁶ When the briefs for the petitioner did gesture toward scientific evidence, the evidence they used was highly unreliable, or misleading. For example, one brief cites to a biology textbook for the proposition that “Every Cell Has a Sex” and that therefore Title IX cannot encompass gender identity.²⁷ Another, written by the homophobic ideologue Judith Riesman,²⁸ relies on a study published in the National Catholic Bioethics Quarterly, which is not peer reviewed.²⁹ Further, briefs in support of petitioner make faulty logical jumps often, using statements like the fact that “[g]ender dysphoria during childhood does not inevitably continue into adult-hood,” with “persistence rates” ranging from 6 to 27%. to argue that gender identity is not a category worth protecting under Title IX.³⁰

     In contrast, briefs for the respondent approach the definition of sex under Title IX from a different angle. They frame the issue of discrimination against trans people as violence based on “people’s incorrect assumption that gender identity automatically aligns with sex assigned at birth,” such that variance is viewed as unhealthy or pathological.”³¹ This aligns protection based on trans identity with the mainstream canon of sex discrimination law. Amici for the respondent note that bathroom laws that target trans people are rooted in a desire to enforce sex and gender norms.³² Moreover, they note that there is growing scientific evidence that gender identity is a biologically rooted phenomenon, perhaps indistinguishable from sex.³³

Transgender Children and Bathrooms: Who Stands to be Harmed?

     The biggest point of departure between amici for the petitioners and respondents is who has the most to lose based on whether the Court interprets Title IX to cover gender identity or not. Amici for petitioner contend that allowing trans people to use the bathroom that comports with their gender will lead to an all-out assault on women and privacy. Meanwhile, amici for respondent note the magnitude of harms that trans children face due to discrimination in bathroom accommodations at school.

     Amici for petitioner seem to believe that if trans people are allowed to use the bathrooms they feel are appropriate, it will unleash a tsunami of sexual violence. Specifically, they allege that a trans-supportive bathroom policy will allow sexual predators to enter women’s rooms, under the guise of being trans women.³⁴ One amicus even goes so far to say that “Redefining “sex” to mean “gender identity” effectively decriminalizes this predatory sexual activity and gives a get-out-of-jail free card to any predator who smiles and says, “But I identify as a woman.””³⁵ And yet there is no evidence, scientific or anecdotal, of this ever happening! In fact, several of amici for respondent are schools, universities, and state governments which report that when they adopted trans-supportive bathroom policies, nothing happened.³⁶ In its brief, the Montgomery County Public School Board opined that it would be way too much effort to fake a transition, noting that it had a comprehensive social transition plan with students, which would be way too much effort to go through just to gain access to a bathroom to sexually harass other students.³⁷ Amicus Mills College, an independent liberal-arts college for women, was the first to adopt a formal policy admitting trans women. They found that the decision to admit trans women “has not significantly altered the classroom environment” nor has it had negative effects in dorms, bathrooms, locker rooms, or any other facilities where privacy may be a concern.³⁸

     On the other side, briefs for respondent raise serious concerns about the safety and mental health of trans students. In amici’s experiences working with trans children, recognizing their gender identity is essential to promoting dignity and social-emotional well being.³⁹ They note that the process of defining and expressing gender identity tends to be challenging for transgender children because they endure skeptism, harassment, and even physical violence from the peers whose approval they seek.⁴⁰ They note that “In the 2015 National Transgender Discrimination Survey (NTDS), the largest survey of transgender people to date, 77% of respondents who were known or perceived as transgender in grades K-12 reported experiencing harassment by students, teachers, or staff.”⁴¹ Most crucially for this case, amici for respondent note that 69.5% of trans students avoid school bathrooms, and that 57% of those students reported negative health effects from avoiding bathrooms, such as kidney damage or urinary tract infections.⁴²

Analysis of Specific Studies

     Many of the briefs in support of respondents relied on three studies in particular, which we analyze in more depth below.

GLSEN (Greytak) Study 2008⁴³

     Many of the briefs rely on a study based on the Gay, Lesbian, Straight Education Network (GLSEN)’s 2006-2007 National School Climate Survey. This survey was administered online, relying on outreach to LGBT high school students through LGBT support organizations and targeted online outreach. It had a sample of 6,209 LGBT students, 295 of whom were transgender.⁴⁴

     The study found that although LGBT students overall reported high levels of harassment and assault in school, transgender students experienced even higher levels than nontransgender students. In fact, they found that 46% of transgender students reported missing at least one day of school in the last month because they felt unsafe or uncomfortable.⁴⁵ They found that 90% of students reported hearing biased remarks about gender expression in the last year from other students, and 39% reported hearing such remarks from teachers. They found that, when reported, these incidents were acted upon by students or staff around 11% of the time. They found that 82% of transgender students reported feeling unsafe at school.⁴⁶

GLSEN (Kosciw) Study 2015⁴⁷

     Amici also rely substantially on a GLSEN study conducted in 2014. This study is based on the 2013 GLSEN National School Climate Survey. Its information gathering methods are substantially similar to that of the Greytak study, with an online survey drawing from a combination of online advertising and outreach through LGBT groups. The study had a sample size of 7,898 students in 2,770 school districts.

     This study found again that transgender students face hostile school environments compared even to LGB students. This time, however, it enquired more deeply into the nature of the hostility. They found that 63.4% of transgender students avoid bathrooms because they feel unsafe or uncomfortable there, and that 52.1% of trans students avoid locker rooms. They found that at least a third of trans students were forced to use a bathroom that they felt was inappropriate to their gender.

     The study further found that victimization severely impacts academic achievement, with high levels of victimization on the basis of sexual orientation or gender leading to GPA drops of up to .5 points. They further found that high levels of victimization led to a 4% increase in the number of LGBT students not planning to pursue post-secondary education.

Wernick Study⁴⁸

     The Wernick study, which many amici rely on, is the only one which focuses primarily on the issue of bathroom access. The study relies on data from Riot Youth Climate Action Project survey. The study used a complex multiple-regression scheme which controlled for grade level, race, and “school climate.”

     The study made several notable findings, most substantially that trans students face feelings of unsafety in school facilities at much higher rates than cisgender students. Further, they found that gender identity was a very high predictor of student feelings of safety and self esteem. They also found that when trans students had access to safe facilities, they had substantially greater feelings of self-esteem.

Footnote Resources:

¹ 86 Stat. 235.

² G.G. v. Gloucester Cty Sch. Bd., 822 F.3d 709, 715 (4th Cir. 2016).

³ Id.

⁴ Id. at 716.

⁵ Id.

⁶ Id.

⁷ Id.

⁸ See G.G. v. Gloucester Cty. Sch. Bd., 132 F. Supp. 3d 736 (E.D. Va. 2015).

⁹ Id.

¹⁰ See G.G. v. Gloucester, 822 F.3d 708 (2016).

¹¹ U.S. Dep’t of Ed., Office for Civil Rights, Opinion Letter of January 7, 2015.

¹² Gloucester Cty. Sch. Bd. v. G.G. 137 S. Ct. 369 (U.S. Oct. 28 2016).

¹³ Gloucester Cty. Sch. Bd. v. G.G., 2017 U.S. LEXIS 1626 (U.S. Mar. 6, 2017).

¹⁴ See Grimm v. Gloucester Cty. Sch. Bd., 869 F.3d 286 (4th Cir. 2017).

¹⁵ Id.

¹⁶ 519 U.S. 452 (1997).

¹⁷ See Brief of Petitioner, Gloucester Cty. Sch. Bd. v. Grimm 1, No. 16-273 (Jan. 3, 2017). (last visited Mar. 26, 2018).

¹⁸ Id.

¹⁹ See, e.g. Eagle Forum of Education and Legal Defense Fund Brief; Brief of Amici Curiae the State of West Virginia, 20 Other States, and the Governors of Kentucky and Maine Supporting Petitioner; Brief for Members of Congress as Amici Curiae in Support of Petitioner.

²⁰ See Emma Green, The Trump Administration May Have Doomed Gavin Grimm’s Case, The Atlantic (Mar. 6 2017). (last visited Mar. 26, 2018).

²¹ For clarity’s sake, we use “sex” to mean one’s biological sex characteristics, both primary and secondary. We understand the terms “gender” and “gender identity” to be synonymous, and use them interchangeably. Note however that many of the briefs confuse the three terms considerably.

²² See, e.g., Brief for Members of Congress as Amici Curiae in Support of Petitioner 2,5 (“virtually every dictionary definition of ‘sex’ referred to the physiological distinctions between males and females, particularly with respect to their reproductive functions.”); Brief Amicus Curiae of Public Advocate of the US, U.S. Justice Foundation, and Conservative Legal Defense and Education Fund in Support of Petitioner 15 (“For a millennia[sic], the definition of sex has been threefold: a person’s “reproductive organs” (internal and external), their “structures,” and their “functions.”).

²³ See, e.g., Brief Amicus Curiae of Public Advocate of the US, U.S. Justice Foundation, and Conservative Legal Defense and Education Fund in Support of Petitioner 9 (cites to the Book of Genesis for the proposition that “Throughout human history, sex has been binary — male or female”).

²⁴ Brief of Major Religious Organizations As Amici Curiae Supporting Petitioner 2 (“Major religious traditions—including those represented by amici—share the belief that a person’s identity as male or female is created by God and immutable”).

²⁵ See, e.g., Brief of Christian Educators Association Int’l et al as Amici Curiae In Support of Petitioner 5 (“Amici believe—along with practically all of humanity throughout all of human history—that if a boy says he is a girl, he is not “transgender”; he is denying biology and pretending to be a sex other than his own”).

²⁶ Brief Amicus Curiae of Public Advocate of the US, U.S. Justice Foundation, and Conservative Legal Defense and Education Fund in Support of Petitioner 12 (“Perhaps one of the most interesting genders offered is the Native American “two-spirit” gender, which includes both male and female elements”).

²⁷ Brief Amicus Curiae of Public Advocate of the US, U.S. Justice Foundation, and Conservative Legal Defense and Education Fund in Support of Petitioner 6, citing Chapter 2 of “Exploring the Biological Contributions to Human Health: Does Sex Matter?” National Academy of Sciences, 2011. (“there are multiple, ubiquitous differences in the basic cellular biochemistry of males and females.... Many of these differences do not necessarily arise as a result of differences in the hormonal environment of the male and female but are a direct result of the genetic differences between the two sexes”).

²⁸ See Daniel Radosh, Why Know?, The New Yorker (Dec. 6, 2004). (last visited Mar. 26, 2018) (noting that Riesman “has written that the ‘recruitment techniques’ of homosexuals rival those of the Marine Corps … challenges the ‘myths’ that gays were victimized in Nazi Germany … [argues that] Idealistic ‘gay youth’ groups are being formed and staffed in classrooms nationwide b recruiters too similar to those who formed the original ‘Hitler youth’”).

²⁹ In the Journal of Medical Ethics, Dr. David Benatar argues that the field of bioethics has substantial “problems of disciplinary quality,” because there are no real standards. Further, he notes that bioethics is a discipline of philosophy, not science, often with few academic or educational requirements. D. Benatar, Bioethics and Health and Human Rights: A Critical View, 32 J. Med. Ethics 17 (Jan. 2006).

³⁰ Seventh Day Adventists, citing World Prof’l Ass’n for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender -Nonconforming People, 11 (7th ed. 2012). (“WPATH Report”) (cited in 81 Fed. Reg. at 31,435 n.263).

³¹ Amici Curiae Brief of Scholars Who Study the Transgender Population in Support of Respondent 13; Am. Psychological Ass’n (“APA”), Guidelines for Psychological Practice with Transgender and Gender Nonconforming People, 70 Am. Psychol. 832, 832, 862 (2015).

³² Amici Curiae Brief of Scholars Who Study the Transgender Population in Support of Respondent 14, citing Levi & Redman, The Cross-Dressing Case for Bathroom Equality, 34 Seattle L. Rev. 133, 151-58, 164-70 (2009).

³³ Amici Curiae Brief of Scholars Who Study the Transgender Population in Support of Respondent 22; Aruna Saraswat et al., Evidence Supporting the Biologic Nature of Gender Identity, 21 Endocrine Practice 199, 199-202 (2015) (comprehensively reviewing scientific literature regarding biological origins of gender identity, including studies of neuroanatomy and genetic factors).

³⁴ See, e.g., Brief of Amicus Curiae Safe Spaces for Women 2 (“While Safe Spaces for Women bears no animus toward the transgendered community, it is deeply concerned that true sexual predators may take advantage of such policies to victimize women.”); Brief of Amici Curiae Women’s Liberation Front and Family Policy Alliance In Support of Petitioner 2 (“women will lose their physical privacy and face an increased risk of sexual assault. This redefinition allows any man to justify his presence in any womenonly space simply by uttering the magic words, “I identify as a woman””); id at 7 (“That any man can justify his presence in any women’s restroom, locker room, or shower by saying, “I identify as a woman” will not escape the notice of those who already harass, assault, and rape tens of thousands of women every day.”).

³⁵ Brief of Amici Curiae Women’s Liberation Front and Family Policy Alliance In Support of Petitioner 10.

³⁶ Brief for the States of New York, Washington, California et al., as Amici Curiae In Support of the Respondent 20; Alberto Arenas et al., 7 Reasons for Accommodating Transgender Students at School, 98 Phi Delta Kappan 20, 21 (Sept. 2016) (citing Carlos Maza & Coleman Lowndes, Here’s the Truth About the Anti-LGBT “Bathroom Predator” Myth (Media Matters for Am., Apr. 12, 2016); Rachel Percelay, 17 School Districts Debunk Right-Wing Lies About Protections for Transgender Students, Media Matters for Am. (June 3, 2015); Carlos Maza & Luke Brinker, 15 Experts Debunk Right-Wing Transgender Bathroom Myth, Media Matters for Am. (Mar. 20, 2014) (law enforcement officials, government employees, and advocates for victims of sexual assault describe this type of speculation as baseless and “beyond specious”); Luke Brinker, California School Officials Debunk Right-Wing Lies About Transgender Student Law, Media Matters for Am. (Feb. 11, 2014).

³⁷ Brief of Montgomery County Public School Board In Support of Respondent.

³⁸ Brief for Mills College as Amicus Curiae Supporting Respondent.

³⁹ See, e.g., Brief of Montgomery County Public School Board In Support of Respondent; Amici Curiae Brief of Scholars Who Study the Transgender Population in Support of Respondent.

⁴⁰ Brief of Montgomery County Public School Board In Support of Respondent, citing Maryland Dep’t of Educ., Providing Safe Spaces for Transgender and Gender Non-Conforming Youth: Guidelines for Gender Identity Non-Discrimination (Oct.2011) (citing a 2011 study of transgender children in k-12 schools in Maryland, in which 81 percent reported verbal harassment, 38 percent reported physical assault, and 16 percent reported sexual violence); Corey W. Johnson et al., “It’s Complicated”: Collective Memories of Transgender, Queer, and Question Youth in High School, 61 J. HOMOSEXUALITY 419, 427 (2014).

⁴¹ Brief for the States of New York, Washington, California et al., as Amici Curiae In Support of the Respondent, citing Sandy E. James et al., The Report of the 2015 U.S. Transgender Survey 132-35 (Nat’l Ctr. for Transgender Equality 2016.

⁴² Amici Curiae Brief of Scholars Who Study the Transgender Population in Support of Respondent 14, citing Herman, Jody L., Gendered Restrooms and Minority Stress: The Public Regulation of Gender and Its Impact on Transgender People’s Lives, J. Pub. Mgmt. & Soc. Pol’y 75 (Spring 2013), tinyurl.com/HermanGenderedRestrooms.

⁴³ Greytak et al, Harsh Realities: The experiences of Transgender Youth in Our Nations Schools, GLSEN (2008).

⁴⁴ Id. at x.

⁴⁵ This rate of school absence due to safety concerns had a p value less than .001 when compared to the rate of safety-related absence of cisgender children.

⁴⁶ This rate of feeling unsafe had a p value less than .001 when compared to cisgender children’s feelings of safety.

⁴⁷ Joseph G. Kosciw et al., GLSEN The 2013 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nation’s Schools (2014).

⁴⁸ Wernick et al, Gender Identity Disparities in Bathroom Safety and Wellbeing Among High School Students, 46:5 J. Youth & Adolescence 917 (2017).