Transgender Student Rights: Education Department, Courts Not On Same Page
By Duaa Eldeib, Chicago Tribune (TNS)
CHICAGO — The outcome of a transgender student’s fight for locker room access at a northwest suburban Chicago high school could reverberate nationally, as many school districts find themselves ill-prepared to handle a growing number of similar controversies that in some cases have fractured communities and put millions of dollars in federal funding at risk.
Federal authorities remain resolute in their position that transgender students are protected by federal law and — despite court rulings to the contrary — that districts stand in violation of the law if they do not allow transgender students to use facilities of their identified gender.
The U.S. Department of Education reiterated that stance Nov. 2, when it informed Illinois’ largest high school district, Palatine-based Township High School District 211, that it violated Title IX, the federal law that bans discrimination on the basis of sex, by prohibiting a transgender student from using the girls’ locker room.
“The law could not be any clearer,” Catherine Lhamon, assistant secretary for Civil Rights at the U.S. Department of Education, said in an interview. ” … The law has been, thanks to Congress, since 1972, that no student shall be subject to discrimination in school on the basis of sex, and it’s my job to enforce that promise for all of our nation’s students. I take that job very, very seriously, and I feel very strongly that all of our students should see their civil rights satisfied in school.”
The District 211 student, who filed a complaint in 2013 with the Education Department’s Office for Civil Rights, “has been discriminated against on the basis of sex,” Lhamon said.
Yet districts looking for definitive guidance may be stymied by the fact that the position taken by the Obama administration contradicts some of the court rulings in lawsuits over locker room and bathroom access for transgender students.
Among the most pressing questions is whether Title IX applies to transgender students.
In two separate rulings — one this year in a suit against a Virginia district and another in 2013 involving the University of Pittsburgh — the courts dismissed the Title IX claims and upheld the schools’ decisions to prohibit the transgender students from using the facilities that correspond with their gender identities. Both cases have been appealed.
To underscore their position, the U.S. Department of Education and the Department of Justice filed a brief in the Virginia case last month saying that school’s bathroom policy violated Title IX by discriminating against the teenager and subjecting him to differential treatment.
“I have great respect for our federal court judges, but these two have just misread the law,” Lhamon said. ” … We feel very confident about our interpretation.”
District 211 Superintendent Daniel Cates said the district reviewed legal opinions on the issue, including the Virginia case, when concluding that its policy was not discriminatory. The student uses a private, separate restroom to change for gym and sports, and as part of the negotiations with education officials, the district put up four privacy curtains in unused areas of the locker room and another one around a shower. However, because the district stipulated that the student would be required to use them, federal officials balked at the plan.
“Expecting and having students agree and commit to individual measures of privacy in the locker room of their gender identity is a very reasonable and legal accommodation. It’s one that we think can move this whole matter forward for not only us but many districts,” said Cates, who added that officials from other districts, including at least one out of state, have reached out to him for consultation on similar matters in their respective districts.
Kimberly Yuracko, a Northwestern University law professor who studies gender equity in employment, as required through Title VII of the Civil Rights Act of 1964, said she expects courts to look to Title VII cases for direction on Title IX because case law is more established.
“Schools won’t be able to expel transgender individuals. They won’t be able to put up with harassment. They’ll have to protect them in a variety of ways, but I can see bathrooms and locker rooms being the last holdout,” Yuracko said. “In Title VII cases, if a transsexual individual has a job rescinded, if they’re harassed, if they’re denied a job, they get protection, but not protection to use the restrooms of the gender with which they identify.”
The Department of Education’s statements are not binding in court, Yuracko said. She said she believes that transgender students likely will lose their bid for locker room and bathroom access in the immediate future. That could change in the next five years as the courts adjust their interpretations of the law, she said.
The American Civil Liberties Union, which is representing the student in the District 211 case, is counting on just that.
“This is an emerging area of the law,” said ACLU of Illinois spokesman Ed Yohnka. “In all civil rights work, especially as you begin the process of fighting for protections, it is not unusual to see a small number of court rulings at the beginning that are setbacks. If you think about marriage litigation, it is often the case that at the beginning, you’ll have courts that will split, or there will be a number of averse rulings that will then be followed by a series of positive rulings.”
Some transgender students have eschewed Title IX altogether and sought help under state human rights acts. The Maine Supreme Court in 2014 found that banning a transgender student from the girls’ bathroom constituted discrimination under the state’s Human Rights Act. Illinois added gender identity as a protected class to its Human Rights Act in 2006.
Mike Theodore, a spokesman for the Illinois Human Rights Commission, which adjudicates discrimination complaints, said that no Illinois cases related to bathroom or locker room use for transgender students have been decided.
“It is a completely new area of case law,” he said. “This process does move slowly for good reason because a good amount of analysis has to go into it to ensure the right precedent is set. The precedent that we set here could guide other court cases.”
District 211 officials said they believe locker room policy neither violates Title IX nor the state’s Human Rights Act — and have said they’re willing to risk their $6 million in federal funding or a potential lawsuit to prove it.
Cates said the district “has long recognized and been responsive to the needs of our transgender students,” which includes bathroom access. The district also allows transgender students to have their gender and name changed on school records, uses their preferred pronouns and allows them to play on the sports teams of the gender with which they identify.
“The question at hand is whether the law requires school leaders to place students of the opposite sex in the same locker room without any measure of privacy,” Cates said.
The district’s firm stance has drawn both praise and criticisms from students and community members. Senior Jake Lytle, 17, started an online petition that has garnered more than 700 signatures in opposition of the district’s position.
“It’s biased and transphobic,” Lytle said.
His mother, Pamela Lytle, said the district’s solution to offer the student a private changing area was “extremely misguided.”
“That is separate but equal,” she said. “That’s a comfortable solution for you, but this is about having the student feel comfortable.”
More than 5,000 people have signed a competing whitehouse.gov petition, and supporters like Xiaobin Liu and about a dozen other community members recently showed up at the district offices with handmade signs backing the district. Liu, whose daughters graduated from District 211, said he has nothing against the student in question but feels that locker rooms are intimate areas whose access should be restricted.
“The locker room is different,” he said. “It’s open. There’s no door there.”
The Illinois State Board of Education has not followed the lead of places like New York, where state education officials this summer released a document outlining how to “create a safe and supportive school environment for transgender and gender nonconforming students.”
“ISBE currently believes that transgender students’ rights are protected by law and has no present intention of publishing any guidance regarding this subject,” agency spokeswoman Laine Evans said.
However the District 211 issue is ultimately resolved, school systems across the country will be watching, said Owen Daniel-McCarter, policy and advocacy director for Illinois Safe Schools Alliance, a nonprofit that works with schools on issues related to lesbian, gay, bisexual, transgender and questioning students.
“What we see in the districts that are being proactive is that when students can just be who they are and don’t have to have all this attention on whether their gender is conforming or not, they excel academically, they are healthier mentally and emotionally and physically,” Daniel-McCarter said.
The group worked with Berwyn South School District 100, which in August adopted a policy that included creating gender support plans for their transgender and gender nonconforming students and establishing a districtwide gender support team that could include social workers, school psychologists, teachers, nurses and P.E. teachers. Students can decide which gender bathroom and locker room they prefer to use.
Jeremy Majeski, principal at Berwyn’s Komensky Elementary School, co-leads the task force that helped craft the policy after one of his students began displaying signs of gender nonconformity.
“I knew that I needed to hang my hat on district administration policy and procedures,” Majeski said. “We’re just happy that all of this was put in place not because we were forced to, but because we wanted to.”
Photo: Transgender students want to be protected at schools.