On Nov. 2, the U.S. Department of Education’s Office for Civil Rights (“OCR”) found that a suburban Chicago school district violated Title IX by failing to allow a transgender female student to change and shower in the girls’ locker room without restrictions. In a 14-page letter addressed to the district, OCR determined that requiring a transgender student to use private changing and showering facilities was a violation of Title IX. Instead, said OCR, the student should be given unfettered access to girls’ locker room facilities. The district has called OCR’s findings “a serious overreach” and has indicated its intent to resist enforcement action.

Background

OCR’s investigation ensued after a student filed a complaint alleging the district denied her access to the girls’ locker room. The student, who was born male, transitioned to living full-time as a female during her middle school years, and participates on a girls’ sports team. The student requested access to the girls’ locker room, but the school district instead offered her changing facilities in a private restroom. The student alleged the arrangement set her apart from other students and caused her to miss out on opportunities to bond with her teammates, which led to feelings of exclusion from the team. The school district also installed privacy curtains, and maintained the position that “when it comes to locker rooms…students should be able to use the locker rooms of the gender they identify with—but once inside those locker rooms they would have to use private shower stalls and changing areas to avoid being naked in the company of other students.”

The school district provided justification for its actions, arguing that it balanced the particular student’s rights and interests with the privacy concerns of other students and “based its decision on the needs of all students.”

OCR’s Findings

In examining the school district’s actions, OCR outlined the following legal standards:

  • Federal law implementing Title IX allows schools receiving federal funds to provide separate toilet, locker room, and shower facilities on the basis of sex
  • Such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex
  • All students, including transgender students, are protected from sex-based discrimination under Title IX

Applying those standards, OCR determined that, because the school district denied the student full access to its girls’ locker room, “[the student] has not only received an unequal opportunity to benefit from the District’s educational program, but has also experienced an ongoing sense of isolation and ostracism.” After reviewing the school district’s justifications, OCR found them to be “unavailing.”

Furthermore, OCR noted the school district’s measures had subjected the student to stigma and different treatment, and the school district’s proposed additional alternatives would continue to exclude the student from the girls’ locker room and set her apart from other female students. OCR concluded the school district’s denial of access to the locker rooms was discriminatory and in violation of Title IX.

The District’s Response

In a statement made on the Township High School District 211 website, the school district was frank about its position, stating:

After serious and lengthy consideration, the District will continue to provide private accommodations for transgender students to ensure a respectful school environment, and will not allow unrestricted access to its locker rooms as directed by OCR…District 211 has provided individual accommodations in a manner that does not infringe on the privacy concerns of other students, and it will continue to do so. It is the District’s position that OCR’s unilateral mandate does not consider the best interests of all District 211 students and their families.

The school district, which has more than 12,000 students, emphasized its commitment to protecting “the privacy rights of all students when changing clothes or showering before or after physical education and after-school activities, while also providing accommodations necessary to meet the unique needs of individual students.” The statement also acknowledged the likelihood of future litigation and enforcement action.

Recent Cases

OCR’s letter is the most recent in a series of informal guidance documents the federal agency has released that advance its interpretation that Title IX covers gender identity—an interpretation with which not all courts agree.

For example, in the recent case Grimm v. Gloucester County School Board, No. CIV. A. 4:15cv54, 2015 WL 5560190, at *1-3 (E.D. Va. Sept. 17, 2015), a federal court in Virginia rejected a student’s argument that the school’s rule requiring students to use restrooms consistent with birth sex amounted to gender identity discrimination in violation of Title IX.

And, in March, a federal judge in Pennsylvania rejected a transgender male student’s claim that a university violated his Title IX rights by disciplining him for repeatedly using the men’s locker room instead of the unisex locker room provided. See Johnston v. University of Pittsburgh of the Com. System of Higher Education, No. CIV. A. 3:13-213, 2015 WL 1497753, at *2 (W.D. Pa. March 31, 2015).

What This Means To You

Faced with evolving federal administrative guidance and conflicting case law, college, universities, and K-12 institutions may feel stuck between a rock and a hard place. Institutional leaders should continue to monitor legal developments affecting the rights of transgender students and seek legal advice when crafting or changing policies that impact transgender students.