Judge Rejects Injunction Seeking to Bar Transgender Girl From Female Restrooms

By Mark Walsh — January 04, 2018 3 min read
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A federal district judge has denied a preliminary injunction to a group of students who challenged an Illinois district’s policy of allowing a transgender student to use the restrooms and locker rooms corresponding to her gender identity.

Meanwhile, a case involving a Wisconsin school district seeking to keep a transgender boy from using the restrooms of his gender identity that has been pending at the U.S. Supreme Court may soon be settled.

The cases from Wisconsin and a suburban Chicago high school district are among several long-running, high-profile lawsuits around the country dealing with transgender student rights in school.

In 2015, Township High School District No. 211, based in Palatine, Ill., agreed to allow a transgender girl identified in court papers as Student A to use the girls’ locker room only after the intervention of the U.S. Department of Education‘s office for civil rights during President Barack Obama’s administration.

But the district was soon sued by a group of students backed by the Alliance Defending Freedom, a Scottsdale, Ariz.-based group that has taken the lead in the fight to keep transgender students from using school restrooms and locker rooms that correspond to their gender identity.

Those challengers, whose group is called Students and Parents for Privacy, argue that allowing transgender students into their gender-corresponding restrooms and locker rooms infringe the challengers’ right to privacy. They lost before a federal magistrate judge in 2016 when that judge recommended against the injunction they sought.

In a Dec. 29 decision in Students and Parents for Privacy v. U.S. Department of Education, U.S. District Judge Jorge L. Alonso of Chicago adopted the recommendations of the magistrate. (The federal Education Department was dismissed as a defendant after President Donald Trump’s administration early this year withdrew Obama administration guidance that a Title IX regulation under the federal statute against sex discrimination covers bias against transgender students.

But Alonso made clear that even though the Obama administration guidance is off the table, a number of court rulings, including one binding on him by the U.S. Court of Appeals for the 7th Circuit, in Chicago, have held that Title IX itself is now interpreted to prohibit a school district from treating a transgender student differently from a non-transgender student.

Alonso noted some of the privacy protections added by District 211 during the case, saying “the restrooms at issue here have privacy stalls that can be used by students seeking an additional layer of privacy, and single-use facilities are also available upon request. Given these protections, there is no meaningful risk that a student’s unclothed body need be seen by any other person.”

In a statement, ADF Senior Counsel Gary McCaleb said, “Because the court should have suspended the district’s privacy-violating policies, we will likely appeal.”

Meanwhile, one of those cases in which the 7th Circuit has taken a broad view of Title IX’s protections involves a transgender boy named Ashton Whitaker and the Kenosha, Wis., Unified School District. Whitaker graduated from high school last spring, but the parties contend the case is not moot.

The school district’s appeal of the 7th Circuit decision has been pending at the Supreme Court, with both sides having sought extensions for the filings of their briefs.

Now, in a filing with the court, the lawyer for Whitaker told the justices that the case may soon be settled.

“At this time, the parties are in advanced settlement negotiations and expect a final resolution of this case in the near future,” the lawyer, Sasha Samberg-Champion, said in the letter asking for another 30-day extension of time to file his brief for Whitaker. Samberg-Champion said the lawyer for the school district “consents to this request.”

Last term, the high court dismissed the appeal in the Gloucester County School Board v. G.G. case, which as it stood before the justices was based on the informal Education Department Title IX guidance that was withdrawn by the Trump administration.

Now, the latest transgender case before the justices appears unlikely to be taken up by them.

A version of this news article first appeared in The School Law Blog.