The issue of transgender rights is not just a distant topic discussed on television shows. For many school districts across the Commonwealth, it is a daily reality. As districts try to understand their obligations to transgender students under Title IX, they must also remain cognizant of the privacy rights entitled to their entire student body. Perhaps the greatest challenge in this balancing act is access to and the use of student locker rooms. In a recent settlement between the Township High School District 211 in Palatine, Illinois, and the United States Department of Education Office for Civil Rights (OCR), some clarity may have come to this particular issue. Since the OCR is responsible for enforcing Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in any education program or activity that receives federal funding, the significance of such a settlement cannot be overlooked. While the agreed upon solution may not be universally pleasing, it at least gives guidance as to what the OCR finds legally acceptable.
The settlement, which was reached on December 2, 2015, focused on the district’s policy that required a transgender female student to use locker room facilities that were consistent with her gender at birth. The student, who was born male, had identified as female from a very early age. Since middle school, she had consistently presented herself as female, completed a legal name change, changed her passport to reflect her gender identity, and began hormone therapy. The district treated her as female in all other aspects, including allowing her to use female restrooms; however, she was not permitted to use the female locker rooms. The district cited their concern for the needs of all students, claiming they balanced the student’s “rights and interests with the privacy concerns of other female students.” They specifically stated that if the student was allowed to change in the female locker rooms, then they “would expose female students as young as fifteen years of age to a biologically male body.” Privacy curtains were installed in one locker room, but she was not permitted to use them unless she agreed to always change behind the curtains. The student claimed that while she most likely would have done so, she insisted that she be able to make that decision on her own. The OCR agreed with the student and claimed that the district’s policy amounted to a violation of Title IX and threatened a possible lawsuit unless a settlement was reached.
In reaching a settlement, the district agreed to allow the student access to the locker room consistent with her gender identity under the condition that she will change in a private changing station within the locker room. She will not have “unfettered access” to the locker room. Furthermore, any student who wishes to use these private changing stations will be permitted to do so. The settlement did not amount to a district-wide policy, instead it only applied to the particular student in question.
The significance of such an agreement is that, while still championing the cause of unfettered access, the OCR appears willing to settle for access with limits. In its letter to the district, it acknowledged the need to protect the privacy interests of all students and stated that “providing sufficient privacy curtain access to accommodate any students who wish to be assured of privacy while changing” is an acceptable solution to this conflicting situation. As a result, districts facing a similar circumstance should take comfort in knowing that by adopting a similar policy, then it might satisfy the OCR. While each case will be fact specific, if the OCR is satisfied, then districts would not have to fear a lawsuit by the United States Department of Justice for violating Title IX and possibly lose federal funding.
If you have any questions about your obligations to transgender students under Title IX, please contact our School Group.