As federal civil rights officials ramp up pressure on a suburban Chicago district to give a transgender student full access to its girls鈥� locker rooms, similar flare-ups in public schools recently are presenting educators with complicated questions about their responsibilities to students whose gender identity doesn鈥檛 match the sex they were assigned at birth.
In a 14-page letter to Daniel E. Cates, the superintendent of Township High School District 211 in Palatine, Ill., last week, officials with the U.S. Department of Education鈥檚 office for civil rights said the district is violating a transgender girl鈥檚 civil rights by not allowing her unrestricted use of her high school鈥檚 girls鈥� locker rooms.
鈥淥CR finds by a preponderance of the evidence that the district is in violation of Title IX for excluding Student A from participation in and denying her the benefits of its education program, providing services to her in a different manner, subjecting her to different rules of behavior, and subjecting her to different treatment on the basis of sex,鈥� OCR regional director Adele Rapport wrote.
District leaders have rejected that legal stance, arguing that by providing the student a privacy area within the girls鈥� locker room, they are respecting the rights of all students.
The Illinois district is unique in resisting the department鈥檚 interpretation of Title IX. The Education Department and U.S. Department of Justice previously launched two investigations of treatment of transgender students in public schools in California. Both those districts entered into voluntary agreements to resolve civil rights concerns before the investigations were complete.
鈥淲e do not agree with [OCR鈥檚] decision and remain strong in our belief that the district鈥檚 course of action, including private changing stations in our locker rooms, appropriately serves the dignity and privacy of all students in our educational environment,鈥� Superintendent Cates said in a statement.
The letter to Cates is the latest phase of a standoff that has been brewing since the transgender girl and her family filed a complaint with the office for civil rights nearly two years ago. It鈥檚 also one of a series of moves the federal agency has made recently to advance its interpretation that Title IX covers gender identity as well as sex and gender, creating obligations that public school districts must fulfill.
Lack of Legal Clarity
Making accommodations for transgender students can create tensions in school districts. Although transgender students make up a small percentage of the population, advocates say a growing acceptance of gender identity issues have encouraged many children to 鈥渃ome out鈥� earlier than they may have in previous years. That means more schools are facing questions about what they are legally required to provide to transgender students.
鈥淚鈥檝e been teaching school law for 13 years and every year there鈥檚 kind of the 鈥榠t question鈥� I get from school administrators,鈥� said Suzanne Eckes, an associate professor of education leadership who teaches about school law at Indiana University Bloomington. 鈥淣ow, in the past year, I鈥檝e been getting a lot of questions about 鈥榳hat should we do about our transgender policy?鈥� 鈥�
When creating policies on the issue, district leaders have been challenged by parents, students, and political groups who say issues related to transgender bathroom and locker room use threaten the privacy rights of other students. Recently, students in a Missouri district held a walkout to protest a new policy that allowed a transgender girl to use the girls鈥� locker room. Four school board members resigned in the aftermath.
Further complicating the situation is a lack of legal clarity that some districts have about the issue, Eckes said. Advocates for LGBT students have leaned on the Education Department to issue more specific civil rights guidance to states and districts about schools鈥� responsibilities under Title IX in regards to issues like facilities, pronouns, and records for transgender students.
But the agency鈥檚 interpretation does not carry the force of law, so such guidance may not be the final word many are looking for about an issue that can be controversial for some, Eckes said.
To this point, legal precedents on the issue are largely pending before state courts and civil rights boards, which means they don鈥檛 hold weight elsewhere, she said.
Seventeen states or districts, as well as the District of Columbia, have more general laws that prohibit discrimination on the basis of gender identity. Those states include California, which implemented a law that explicitly lists transgender student protections in 2014. Opponents later tried, and failed, to overturn the new law.
Legislators in other states, such as Utah, have proposed laws that would restrict access to student facilities to those who match their sex at birth, but none of those bills have passed.
A federal judge recently dismissed a Virginia transgender student鈥檚 Title IX argument in a preliminary hearing. That student has requested a new judge in the case, saying the current judge has called gender dysphoria a 鈥渕ental disorder.鈥� He has also appealed the judge鈥檚 initial ruling.
The Education Department filed an amicus brief in that case with the U.S. Court of Appeals for the Fourth Circuit, siding with the student and backing his argument that prohibiting him from using the restroom of the gender he identifies with constitutes 鈥渄ifferential treatment on the basis of sex under Title IX.鈥�
A Difficult Case
In the Illinois district, the transgender student was born male, but identified as a female from a young age, and by middle school, had transitioned to living full-time as a young woman, according to the OCR鈥檚 letter. During her 8th grade year, the student鈥檚 parents were in frequent communication with educators at the high school she would be attending to discuss her name change, registration as a female student, access to girls鈥� restrooms and locker rooms, and eligibility for girls鈥� sports teams.
According to OCR鈥檚 letter, the district honored the student鈥檚 鈥渞equest to be treated as female in all respects except her request to be provided access to the girls鈥� locker rooms at the school.鈥� In December 2013, the student filed a formal complaint with the civil rights office.
Initially, the district provided the student access to a single-occupancy restroom near the gymnasium as a private place to change for P.E. class, installing a locker for her there. The student 鈥渆xpressed dissatisfaction鈥� with that arrangement, according to OCR鈥檚 letter, so the district offered an alternative location that would have allowed her to change in a restroom adjacent to the girls鈥� locker room and installed a bank of lockers there for the student and friends of her choosing 鈥渨ho would be comfortable changing alongside her.鈥� But, the student said, that arrangement would 鈥渙stracize鈥� her more by drawing attention to the fact that she must change separately. She opted to keep using the single-occupancy restroom.
The student also complained about the alternative changing environments the district provided her during swimming class, as well as her lack of full access to the girls鈥� locker room as a member of one of her school鈥檚 girls鈥� sports teams.
Privacy Curtains
As of late last month, the district had installed privacy curtains in the girls鈥� locker room that is used for P.E. classes but has not done the same for the locker rooms used for swimming classes and for sports teams, according to OCR. District officials have indicated that they won鈥檛 grant the student full access to the girls鈥� locker room unless she is required to use the private changing areas.
And in a written response to OCR鈥檚 latest salvo, district leaders showed no signs of backing down.
In his statement, Superintendent Cates calls OCR鈥檚 position as 鈥渟erious overreach with precedent-setting implications.鈥�
But Assistant Secretary for Civil Rights Catherine Lhamon disagreed, saying the district鈥檚 policy of providing private accommodations for transgender students 鈥渋s not following the law.鈥�
鈥淎ll students deserve the opportunity to participate equally in school programs and activities鈥攖his is a basic civil right,鈥� Lhamon said in a statement. 鈥淭he district can provide access to this student while also respecting all students鈥� privacy. We encourage the district to comply with the law and resolve this case.鈥�
