New York strikes down Long Island school districts' transgender bathroom policies

A school district on Long Island is litigating the culture wars. A few years ago, it challenged New York's directive that districts dispense with Native American mascots. This time around, the district challenges New York's directive that schools allow transgender students to use the bathrooms that align with their gender identity. This challenge fails, and the State Department of Education rules in favor of transgender students.

The case is Jane and John Doe v. Board of Education of Massapequa Union Free School District, decided by the State Education Department on April 20. The decision also addresses the Locust Valley School District's identical bathroom policy. Disclosure: I graduated from this district many years ago and helped litigate the Bostock ruling that went before the Supreme Court. I have nothing to do with this case.

The Doe's are the parents of a transgender student. They challenge a school board resolution stating that "all students shall be required to use facilities -- including restrooms and locker rooms -- that correspond with the student's sex as defined under Title IX and federal law." Title IX is the law that prohibits sex discrimination in schools.While the Supreme Court in Bostock v. Clayton County (2020) held that discrimination against transgender status violates Title VII -- the employment discrimination law -- the school district here must be interpreting Title IX to allow for this exclusion from the bathroom. "As a result, the student was no longer permitted to use the locker room or restroom that aligned with her gender identity." Hence, this appeal to the Commissioner of Education. (Similar litigation, initiated by the Massapequa school district, was filed in federal court last year, and that case is pending).

What dooms the district's position in this case is that it adopted the resolution without providing the public with advance notice during regular meetings of the board. This procedure, baked into the district's own written procedure, allows the public to provide input into the resolution. While the district argues that the resolution was not a change in policy, the Commission is not buying that argument, noting that it styled the policy itself as an amendment to district policy. 

Apart from that procedural violation, the Commissioner rejects the policies on the merits. The Commissioner notes that school district resolutions that conflict with state regulations are void. That's the case here. The New York Human Rights Law and related sex discrimination statutes bar school districts from discriminating against students based on their actual or perceived sex and gender identity or expression. State law further states that these provisions are violated when districts deny access to school facilities such as bathrooms, changing rooms, and locker rooms based on a student's actual or perceived gender, which includes gender identity or expression. Under these principles, the bathroom policies are stricken.

The districts have another argument: that they have made gender-neutral bathrooms available for transgender students. Sort of like a "separate but equal." But, the Commissioner holds, the Human Rights Law and related state laws do not provide for a "reasonable accommodation" exception. "While students may elect to use gender-neutral facilities, no student may be compelled to do so because of their gender identity. Therefore, the offering of such facilities does not excuse [the districts'] discriminatory resolutions."

In the end, the Commissioner writes, the policies here "targeted a discrete group of people who have become increasingly vilified by irresponsible adults." As the board members in these two districts "disregard[ed] State law to deprive students of the dignity to which they are entitled," they did not live up to their oaths of office, holds the Commissioner.