The rights of transgender students have become the focus of disputes in school districts in many states, leading to divergent approaches regarding which sports teams on which a student may participate, which bathrooms they may use, recognition of name changes and pronouns by which they are addressed, and how to deal with issues on overnight field trips. Several school districts have agreed to lift restrictions on transgender locker room and restroom access after federal officials intervened.
In November, 2015, following a two-year investigation, the U.S. Department of Education, Office for Civil Rights (“OCR”), issued a report finding that Township High School District 211 in Palatine, Illinois, violated anti-discrimination laws by refusing to allow a transgender student who was born male but identified as a girl and participated on a girls’ sports team to change and shower in the girls’ locker room, without restrictions.
OCR investigated under Title IX of the Education Amendments of 1972, and its implementing regulations. Title IX provides that, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Under the regulations, a school district may not treat individuals differently on the basis of sex in terms of services, benefits, or opportunities it provides or subject students to separate or different rules. Once a school district has notice of possible harassment of a student, it is responsible for determining what occurred and responding appropriately. A public school district is not responsible for the actions of a harassing student, but will be liable for discrimination if it fails to adequately respond. A school district may violate Title IX and the regulations if: 1) the conduct is sufficiently serious to deny or limit the student’s ability to participate/benefit from the educational program; 2) the district knew or should have known about the harassment; and 3) the district failed to take appropriate responsive action. These steps are the district’s responsibility whether or not the student who was harassed submits a complaint or otherwise seeks assistance. When a school district knows or should know of possible harassment, it must take immediate and appropriate steps to investigate and, if an investigation reveals that the harassment created a hostile environment, the school district must then take prompt and effective steps reasonably calculated to end the harassment, eliminate the hostile environment, prevent its recurrence and remedy its effects.
From a young age, the Palatine, Illinois, student identified as a female, and by middle school, dressed as a girl, completed a legal name change, obtained a passport identifying her as female, received a diagnosis and treatment for gender dysphoria, including hormone treatments. She was identified in school records as a female student, addressed by her female name/female pronouns, provided unrestricted access to female restrooms and participated in girls’ athletics. At the end of the student’s eighth grade year, parents and school officials met to discuss the student’s request for access to the girls’ locker rooms at the high school and to change clothes privately within the girls’ facility in a private area/restroom stall. The district denied the request, indicating there were too few stalls and too many students. The student indicated she would use privacy curtains in the girls’ locker rooms if the district made them available. The district insisted that it would not allow the student access to the girl’ athletic locker room unless she was required to change clothes behind a privacy curtain to avoid being naked in front of other students.
During OCR’s investigation, the district publicly stated that students should be able to use male or female locker rooms, consistent with their gender identity. However, it insisted that the transgender student at issue be required to change only in a designated private area. OCR determined that this stance resulted in discrimination by denying the student equal benefit to educational opportunities and created an atmosphere of isolation and segregation. The district admitted it denied full access to the girls’ athletic locker facility but attempted to justify its position as necessary to “balance the needs” of all students. It explained privacy issues – allowing the student to be present in the locker room would expose female students to being observed, in a state of undress, by a biological male student and that it would be inappropriate for female students as young as 15 to observe a male student’s body. OCR found that these claims were pretexts for discrimination.
OCR indicated that, given the student’s stated willingness to use a private area in the girls’ locker room for changing clothes, the district could satisfy its obligations under Title IX and protect the privacy of all students by installing and maintaining enough curtained areas for all students who wished to be afforded privacy in the locker room. However, the ruling did not go so far as to approve a requirement for transgender students to access those private areas.
At the time OCR issued its ruling, extended negotiations between OCR and the district failed to result in an agreement. The district was given 30 days to resolve the case, on terms acceptable to OCR, or face the loss of federal funding. The parties ultimately reached agreement for a settlement in early December. However, just one day after the school board approved its agreement with OCR to resolve discrimination claims, the district threatened to retract the settlement and accused the agency of acting in “bad faith.” The district alleged federal officials misstated, in a press release, that the agreement represented a district-wide policy rather than applying only to the student at issue. The district sought a retraction of the comments by an OCR official and threatened to call an emergency meeting to retract the agreement. To finally resolve the matter, OCR wrote a oneparagraph letter to the district’s attorney and confirmed that, “The agreement provisions, specific to locker room access, apply only to Student A, and the District’s agreement to provide Student A access to locker rooms is based on the student’s representation that she will change in private changing stations.”
In a similar case, OCR entered into a settlement agreement in September, 2015, with a California district to resolve alleged discrimination of a transgender student. Under the agreement, the district will take steps to ensure that the student, whose gender identity is male, will be treated like other male students while attending school. Under the settlement agreement, the district agreed to: 1) work with a consultant to support and assist the district in creating a safe, nondiscriminatory learning environment for students who are transgender or do not conform to gender stereotypes; 2) amend its policies to reflect that gender-based discrimination, including discrimination based on a student’s gender identity, transgender status, and nonconformity with gender stereotypes, is a form of discrimination based on sex; and 3) train staff on preventing gender-based discrimination and creating a nondiscriminatory school environment for transgender students.
Contrary to the findings in the above two cases, in September, 2015, a U.S. District Court Judge in Virginia denied a request for a preliminary injunction sought by the ACLU on behalf of a transgender boy and against the Gloucester County Public Schools that refused to allow the student to use the boys’ bathroom. The school district argued that the student was not subject to discrimination because he was free to use the girls’ restroom or one of the school’s unisex bathrooms. The school board approved a rule in December, 2014, requiring all students to use either unisex bathrooms or the bathroom associated with their gender assigned at birth. The Judge found that such rules were permissible. The ACLU has appealed the case to the 4th Circuit Court of Appeals.
The best means to address the needs of transgender students is for public schools to develop clear policies and guidelines.