Education

U.S. Judges Issue New, Conflicting Opinions on School Transgender Rights

By Mark Walsh — October 20, 2016 4 min read
  • Save to favorites
  • Print

The national debate over the rights of transgender students to use school restrooms and locker rooms of their gender identity, and the authority of the federal government’s guidance on the topic, grew a bit more uncertain this week.

The federal district judge in Texas who in August issued a nationwide injunction blocking the Obama administration’s guidance meant to expand transgender students’ access to restrooms and locker rooms in schools on Tuesday sought to clarify the scope of his order.

Judge Reed O’Connor of the U.S. District Court in Wichita Falls, Texas, issued an order to clarify that “the preliminary injunction applies nationwide,” and could not be limited just to the 13 states that have challenged the transgender guidance.

Meanwhile, a federal magistrate judge has recommended against a preliminary injunction sought by a group of parents and students to block a school district in that state from permitting transgender students to use the restrooms or locker rooms corresponding to their gender identity.

U.S. Magistrate Judge Jeffrey T. Gilbert of Chicago issued an 82-page opinion, also on Oct. 18, that explores many angles of the transgender debate in the nation’s schools, including the U.S. Department of Education’s policy guidance from earlier this year. And it offers more discussion of the use of locker rooms (as opposed to restrooms alone) by transgender students than in some other high-profile cases.

Gilbert generally sided with transgender advocates and the Obama administration, though his opinion is merely a recommendation that must be approved by a federal district judge. (His opinion would also seem to be in tension with O’Connor’s nationwide injunction against the federal guidance.)

“Recent rulings by courts around the country ... evince a trend toward a more expansive understanding of sex in Title IX [of the Education Amendments of 1972] as inclusive of gender identity,” Gilbert wrote in his opinion and recommendation in Students and Parents for Privacy v. U.S. Department of Education. “Therefore, the court cannot say with confidence that plaintiffs have a likelihood of success on the merits of their claim that [the Education Department’s] interpretation of Title IX is not in accordance with law or entitled to deference.”

The plaintiff group is made up of parents, students, and prospective students of Township School District No. 211 in suburban Chicago and is represented by the Alliance Defending Freedom. The group sued to block a policy of the 12,000-student district that allows transgender students to use restrooms consistent with their gender identity. The suit also seeks to block an agreement the Education Department entered into with District 211 in 2015 to allow a transgender girl identified as Student A to use the girls’ locker rooms at William Fremd High School in Palatine, Ill.

“The court,” Gilbert wrote, “finds plaintiffs have not shown they have a likelihood of success on the merits of their claim that District 211 or the federal defendants are violating their right to privacy under the United States Constitution or that District 211 is violating Title IX because transgender students are permitted to use restrooms consistent with their gender identity and Student A is allowed to use the girls’ locker rooms at Fremd High School.”

“High school students do not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs,” Gilbert said.

Gilbert’s recommendations go to U.S. District Jorge L. Alonso of Chicago, who will hear objections from the plaintiffs and decide whether to adopt the opinion as his own.

Texas Case

Meanwhile, in the Oct. 18 order in Texas v. United States, O’Connor responded to various motions by the Obama administration to clarify his Aug. 21 nationwide injunction.

“It is clear from Supreme Court and Fifth Circuit precedent that this Court has the power to issue a nationwide injunction where appropriate,” O’Connor wrote. “Both Title IX and Title VII rely on the consistent, uniform application of national standards in education and workplace policy. ... Defendants are a group of agencies and administrators capable of enforcing their Guidelines nationwide, affecting numerous state and school district facilities across the country.”

O’Connor said his order should not otherwise affect the missions of agencies such as the Department of Justice, the Department of Education, and the Equal Employment Opportunity Commission to enforce civil rights laws, including on sex discrimination.

“The injunction is limited to the issue of access to intimate facilities,” O’Connor said. “Defendants are enjoined from relying on the guidelines, but may offer textual analyses of Title IX and Title VII in cases where the government and its agencies are defendants or where the United States Supreme Court or any Circuit Court request that Defendants file amicus curiae briefing on this issue.”

[UPDATE Friday 11:15 a.m.: The Obama administration on Oct. 20 filed a notice of appeal with the U.S. Court of Appeals for the 5th Circuit, in New Orleans, indicating that it will appeal Judge O’Connor’s Aug. 21 and Oct. 18 orders in the case by Texas and other states.]

The opinions come as the U.S. Supreme Court is considering whether to take up the appeal of a Virginia school district that is seeking to avoid the federal guidance on transgender student rights.

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


Commenting has been disabled on edweek.org effective Sept. 8. Please visit our FAQ section for more details. To get in touch with us visit our contact page, follow us on social media, or submit a Letter to the Editor.


Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Teaching Webinar
What’s Next for Teaching and Learning? Key Trends for the New School Year
The past 18 months changed the face of education forever, leaving teachers, students, and families to adapt to unprecedented challenges in teaching and learning. As we enter the third school year affected by the pandemic—and
Content provided by Instructure
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Curriculum Webinar
How Data and Digital Curriculum Can Drive Personalized Instruction
As we return from an abnormal year, it’s an educator’s top priority to make sure the lessons learned under adversity positively impact students during the new school year. Digital curriculum has emerged from the pandemic
Content provided by Kiddom
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Equity & Diversity Webinar
Leadership for Racial Equity in Schools and Beyond
While the COVID-19 pandemic continues to reveal systemic racial disparities in educational opportunity, there are revelations to which we can and must respond. Through conscientious efforts, using an intentional focus on race, school leaders can
Content provided by Corwin

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Education Judge's Temporary Order Allows Iowa Schools to Mandate Masks
A federal judge ordered the state to immediately halt enforcement of a law that prevents school boards from ordering masks to be worn.
4 min read
Iowa Gov. Kim Reynolds speaks to reporters following a news conference, Thursday, Aug. 19, 2021, in West Des Moines, Iowa. Reynolds lashed out at President Joe Biden Thursday after he ordered his education secretary to explore possible legal action against states that have blocked school mask mandates and other public health measures meant to protect students against COVID-19. Reynolds, a Republican, has signed a bill into law that prohibits school officials from requiring masks, raising concerns as delta variant virus cases climb across the state and schools resume classes soon. (AP Photo/Charlie Neibergall)
Education Hurricane Ida Deals New Blow to Louisiana Schools Struggling to Reopen
The opening of the school year offered teachers a chance to fully assess the pandemic's effects, only to have students forced out again.
8 min read
Six-year-old Mary-Louise Lacobon sits on a fallen tree beside the remnants of her family's home destroyed by Hurricane Ida, in Dulac, La., on Sept. 4, 2021. Louisiana students, who were back in class after a year and a half of COVID-19 disruptions kept many of them at home, are now missing school again after Hurricane Ida. A quarter-million public school students statewide have no school to report to, though top educators are promising a return is, at most, weeks away, not months.
Six-year-old Mary-Louise Lacobon sits on a fallen tree beside the remnants of her family's home destroyed by Hurricane Ida, in Dulac, La., on Sept. 4, 2021.
John Locher/AP
Education Massachusetts National Guard to Help With Busing Students to School
250 guard personnel will be available to serve as drivers of school transport vans, as districts nationwide struggle to hire enough drivers.
1 min read
Massachusetts National Guard soldiers help with logistics in this Friday, April 17, 2020 file photo, at a food distribution site outside City Hall, in Chelsea, Mass. Mass. Gov. Charlie Baker on Monday, Sept. 13, 2021, activated the state's National Guard to help with busing students to school as districts across the country struggle to hire enough drivers.
Massachusetts National Guard soldiers help with logistics in this Friday, April 17, 2020 file photo, at a food distribution site outside City Hall, in Chelsea, Mass.
Michael Dwyer/AP
Education FDA: ‘Very, Very Hopeful’ COVID Shots Will Be Ready for Younger Kids This Year
Dr. Peter Marks said he is hopeful that COVID-19 vaccinations for 5- to 11-year-olds will be underway by year’s end. Maybe sooner.
4 min read
Dr. Peter Marks, director of the Center for Biologics Evaluation and Research in the Food and Drug Administration, testifies during a Senate health, education, labor, and pensions hearing to examine an update from federal officials on efforts to combat COVID-19 on Capitol Hill in Washington on May 11, 2021. On Friday, Sept. 10, 2021, Marks urged parents to be patient, saying the agency will rapidly evaluate vaccines for 5- to 11-year-olds as soon as it gets the needed data.
Dr. Peter Marks, director of the Center for Biologics Evaluation and Research in the Food and Drug Administration, testifies during a Senate health, education, labor, and pensions hearing to examine an update from federal officials on efforts to combat COVID-19 on Capitol Hill in Washington on May 11, 2021.
Jim Lo Scalzo/AP