On October 18, 2016, a federal magistrate judge in Illinois issued a recommendation that the Federal District Court deny a motion seeking to deny a transgender student access to the girl’s locker room. The School District’s 2013 policy gave transgender students access to whichever restroom facilities most aligned with their gender identity, but did not extend that access to locker rooms. A transgender student, who identifies as female, filed an administrative complaint alleging Title IX violations with the U.S. Department of Education’s (ED) Office for Civil Rights resulting in a resolution agreement called the “Locker Room Agreement.” This agreement entitled only this particular student to use the girl’s locker room and also included measures for all students to maintain their privacy.

Approximately five months after the resolution was put in place, five students and their parents, as members of Students and Parents for Privacy, filed a lawsuit against ED, the Department of Justice, and the School District, on behalf of all girl students who attend the high school. The judge rejected all substantive claims made by plaintiffs.

The highlights of the opinion are the following:

  • There is nothing “objectively offensive” about the presence of a transgender student being in a locker room where privacy screens protect other student’s exposure to another’s body;
  • The plaintiffs erred in equating the definition of “sex” between Title VII and Title IX, finding that Title IX’s definition can include gender identity;
  • The guiding rules issued by DOE were interpretive and therefore not required to follow the notice and comment process under the APA;
  • The school’s policy found an appropriate balance, avoiding violations of substantive due process and fourth amendment rights;
  • The constitutional right to privacy, as stated by the plaintiffs was too generalized; and
  • No educational opportunities were denied to the plaintiffs such that Title IX was likely to be violated.

This Recommendation coincides with a policy announcement by the U.S. Department of Defense. Its education facilities on military bases will now allow openly transgender students to use the bathroom facility of their choice. This policy enactment follows a highly publicized event earlier this month in which a transgender student at Ramstein Air Base was denied access to the girls’ bathroom facilities at her school.

These developments, particularly in the wake of the Texas injunction barring the enforcement of the federal government’s guidance of the accommodation of transgender students, are further evidence of the disagreement in the lower courts that recently lead the Supreme Court to grant certiorari in Gloucester County School Board v. B.B.