School Districts Confront Transgender Student Policies
As federal civil rights officials ramp up pressure on a suburban Chicago district to give a transgender student full access to its girls' locker rooms, similar flare-ups in public schools recently are presenting educators with complicated questions about their responsibilities to students whose gender identity doesn't 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's office for civil rights said the district is violating a transgender girl's civil rights by not allowing her unrestricted use of her high school's girls' locker rooms.
"OCR 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," 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' locker room, they are respecting the rights of all students.
The Illinois district is unique in resisting the department's 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.
"We do not agree with [OCR's] decision and remain strong in our belief that the district's course of action, including private changing stations in our locker rooms, appropriately serves the dignity and privacy of all students in our educational environment," 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's 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 "come out" 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.
"I've been teaching school law for 13 years and every year there's kind of the 'it question' I get from school administrators," said Suzanne Eckes, an associate professor of education leadership who teaches about school law at Indiana University Bloomington. "Now, in the past year, I've been getting a lot of questions about 'what should we do about our transgender policy?' "
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' 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' responsibilities under Title IX in regards to issues like facilities, pronouns, and records for transgender students.
But the agency's 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't 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's 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 "mental disorder." He has also appealed the judge's 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 "differential treatment on the basis of sex under Title IX."
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's letter. During her 8th grade year, the student's 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' restrooms and locker rooms, and eligibility for girls' sports teams.
According to OCR's letter, the district honored the student's "request to be treated as female in all respects except her request to be provided access to the girls' locker rooms at the school." 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 "expressed dissatisfaction" with that arrangement, according to OCR's letter, so the district offered an alternative location that would have allowed her to change in a restroom adjacent to the girls' locker room and installed a bank of lockers there for the student and friends of her choosing "who would be comfortable changing alongside her." But, the student said, that arrangement would "ostracize" 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' locker room as a member of one of her school's girls' sports teams.
As of late last month, the district had installed privacy curtains in the girls' 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't grant the student full access to the girls' locker room unless she is required to use the private changing areas.
And in a written response to OCR's latest salvo, district leaders showed no signs of backing down.
In his statement, Superintendent Cates calls OCR's position as "serious overreach with precedent-setting implications."
But Assistant Secretary for Civil Rights Catherine Lhamon disagreed, saying the district's policy of providing private accommodations for transgender students "is not following the law."
"All students deserve the opportunity to participate equally in school programs and activities—this is a basic civil right," Lhamon said in a statement. "The district can provide access to this student while also respecting all students' privacy. We encourage the district to comply with the law and resolve this case."
Vol. 35, Issue 12, Pages 1, 15Published in Print: November 11, 2015, as Districts Confront Transgender Policies