Equity & Diversity

Ill. District’s Treatment of Transgender Girl Violates Title IX, Ed. Dept. Says

By Evie Blad — November 02, 2015 4 min read
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A school district in Palatine, Ill., must comply with federal law and allow a transgender girl to have unrestricted access to the girls’ locker room, officials with the U.S. Department of Education’s office for civil rights said in a letter released Monday.

“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 to Palatine, Ill.-based Township High School District 211 Superintendent Daniel Cates.

That letter to Cates is the latest phase of a standoff that has been brewing for weeks after a student there filed a complaint with the Education Department’s office for civil rights.

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 public school districts must fulfill.

Township High School District 211 has been engaged in an unusually public struggle with the agency, with administrators holding press calls and making media appearances to challenge the Education Department’s legal assertions. And in a written response to OCR’s latest salvo, it showed no signs of backing down.

“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 the lengthy statement. Cates’ statement calls OCR’s position “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.”

Civil Rights Obligations

Some educational leaders seem surprised to learn that merely providing a transgender student access to a private facility or a single-stall faculty bathroom isn’t an adequate accommodation in the eyes of transgender student advocates.

Such a solution makes students feel further singled out because of their gender identity and invite harassment from their peers, advocates say, and they also argue that it’s unnecessary to create such a separation.

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 their responsibilities to students whose expressed gender doesn’t match the sex they were assigned at birth.

When creating district 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 some districts have about the issue, education law experts say. 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 uses 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.

To this point, legal precedents on the issue are largely before state courts and civil rights boards, which means they don’t hold weight elsewhere.

A federal judge recently dismissed a 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 court of appeals, siding with the student. From that brief:

“Whereas the policy permits non-transgender students to use the restrooms that correspond to their gender identity (because their gender identity and ‘biological gender’ are aligned), it prohibits [the student] from doing so because, although he identifies and presents as male, the school deems his “biological gender” to be female. ... Treating a student differently from other students because his birth-assigned sex diverges from his gender identity constitutes differential treatment on the basis of sex under Title IX.”

Further reading on transgender and LGBT student issues:

Corey Mitchell, Associate Editor contributed to this article.
A version of this news article first appeared in the Rules for Engagement blog.