Department of Education Sides with Transgender Student’s Allegations of Sex-Based Discrimination
Sidney O. Minter, Teague Campbell Dennis & Gorham, LLP
On November 2, 2015, the Department of Education (the “DoE”) issued a potentially landmark decision regarding the rights of transgender students. This decision was issued following months of investigation into allegations that Palatine High School District 211 (the “District”) discriminated against a transgender female (“Student”) on the basis of her sex. The DoE determined that the District violated federal discrimination laws by denying Student access to gender-appropriate locker rooms because she is transgender.
In December 2013, Student filed a complaint against the District alleging violations of Title IX. of the Educational Amendments of 1971 (“Title IX”). Based on the allegations of Student’s complaint, she was born a male at birth, but identified as a female from a young age. The complaint also indicated that Student came out to her family as transgender a few years earlier and that she owned a United States passport identifying her as a female. The complaint outlined that Student had been diagnosed with a psychological condition—gender dysphoria—a condition for persons who experience incongruence between their experienced/expressed gender. In addition, Student indicated that, for the past few years, she lived her life as a female (There was not any discussion regarding whether Student underwent a medical procedure to change her sex). This included dressing and presenting as a female, requesting that everyone refer to her by her female name, requesting that everyone refer to her using female pronouns, and by using female restrooms.
During her eighth grade year, she requested a meeting with administrators from the District regarding her transition to high school. Following a meeting with a psychologist from the District, she was informed that she would be allowed to use girls’ restrooms, to wear female uniforms during gym class, and to participate on female athletic teams. However, at the same time, she was informed that she would not be allowed to use girls’ locker rooms to change for her daily gym class. Instead, she was instructed to use a separate bathroom, which she contended was far from the gym. Following this decision, Student met with the District’s principal—who confirmed the District’s position regarding Student’s access to girls’ locker rooms.
Student’s Legal Arguments:
In Student’s complaint against the District, her legal counsel alleged a number of legal claims. First, Student alleged the District had engaged in per se discrimination by singling Student out for differential treatment and segregating her from other students because of her gender identity. Next, she alleged that the District engaged in per se discrimination against Student due to her change of sex. Lastly, she alleged that the District’s decision to ban her from the girls’ locker rooms was unlawful sex stereotyping under Title VII.
The District’s Legal Arguments:
The District has made a number of legal arguments, but, ultimately, its legal position seems to be steeped in Constitutional Rights—namely, the Right to Privacy. The District believes its decision to not allow Student unfettered access to the girls’ locker rooms is both lawful and reasonable. The District emphasized that its position protects the privacy rights of all students when changing clothes or showering before or after physical education and after-school activities. Moreover, the District noted that it continues to support transgender students and families—while always balancing the rights and concerns of the other 12,000 or so students it serves. Further, the District believes that it has provided individual accommodations in a manner that does not infringe on the privacy concerns of other students, and will continue to do so—despite the DoE’s ruling. Lastly, the District underscored that it is prepared to contest the DoE’s ruling through litigation—if necessary.
Department of Education’s Ruling:
On November 2, 2015, the DoE found that the District denied Student access to the girls’ locker rooms because of: (1) her gender identity, and (2) her gender nonconformity. If true, both of these claims are actionable causes of action. The DoE’s ruling mandates that the District: (1) reach a solution before the expiration of thirty days (on or before December 2, 2015); or (2) face enforcement, which could include administrative law proceedings or a Justice Department court action. Additionally, the District could lose some or all of its Title IX. funding.
Potential Ramifications of the Ruling:
This case is the first of its kind and could lead to new legal precedent in the developing area of discrimination against transgender individuals. The parties on both sides of this issue—whether the District violated federal discrimination laws by not allowing Student unfettered access to the girls’ locker rooms—are fighting for the rights of many. The District is advocating for similarly situated schools across the country. The District believes it has been reasonable and complied with applicable federal laws as it relates to Student’s treatment. On the other hand, Student is fighting for transgender students across the country who have been subjected to discriminatory treatment, and/or been ostracized, bullied or demeaned.
I believe this case will be litigated in federal district court because it seems that the District will not comply with the DoE ruling. The legal arguments being advanced by both sides are nuanced and broad sweeping. Determining whether a person’s right to be treated equally should be given more, less or the same credence as another person’s right to privacy is a very difficult legal question. This type of legal question may prove to be one that can only be decided—once and for all—by our nation’s highest court—SCOTUS. To add an additional layer to this case, I also believe the issue of accommodation can easily be applied in other areas of society—such as the workplace. With such potentially wide-sweeping ramifications, I believe we have only reached the tip of the iceberg with respect to the relevant legal issues discussed above.
I will continue monitoring this case because the final decision could very well set legal precedent—as it relates to transgender individuals—in public schools across the country.