Feds: Transgender Student Should Have Access to Locker Room

A local transgender student's legal battle to win unrestricted locker room access could have repercussions across the country. Recently the U.S. Department of Education ruled that Palatine Township High School District 211 violated a transgender student's right not to be discriminated against when it refused the student, who was born male but identifies as female, unfettered access to the girls' locker room.

But District 211 Superintendent Daniel Cates accuses the education department of "overreach" and so far is refusing to back down. 

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“The district has honored transgender students and fully recognizes and supports transgender identity,” Cates said. “We have facilitated their participation in sports teams, and we have allowed access into the identified bathrooms. ... We have supported and accommodated that for the very reason that we are able to provide privacy in the bathrooms.

“Where we reach an impasse is in this point: We fully acknowledge that who we all are on the inside is indeed who we are, but as school administrators when we reach the point of an open, public area where teenagers—minors—are changing, showering and we are responsible for protecting the principle of privacy. That is an area where we have said we would not allow unrestricted access in a locker room.”

In its report, the Department of Education stated that the district could grant the student access to the locker room without jeopardizing other students’ privacy.

“Thus, the evidence establishes that, given Student A’s stated intention to change privately, the District could afford equal access to its locker rooms for all its students if it installed and maintained privacy curtains in its locker rooms in sufficient number to be reasonably available for any student who wants privacy. Here the totality of the circumstances weighs in favor of the District granting Student A equal access to the girls’ locker rooms, while protecting the privacy of its students,” the report states. 

Cates says the district’s position on locker room access isn’t that far apart from the Department of Education’s.

“We have offered transgender students to enter our locker rooms with an agreement and a commitment that they would honor an individual measure of privacy that is our request,” Cates said. “[The Department of Education has] said that their position is we must have all the same or none the same. So all students must be expected to change in privacy or no students would be expected to change in privacy.”

Watch the video above for the full conversation with Cates.

John Knight is the director of the LGBT/HIV Project for the ACLU of Illinois. He talks with "Chicago Tonight" about the local transgender student’s fight for locker room access in District 211.

Just to start out with, my understanding in this case is that you’ve got the federal authorities in the shape of the Department of Education saying that this student should have unfettered access, but there are court rulings in Virginia and Pittsburgh that seem to be at odds with the Department of Education’s approach on this issue. Where is the law on this? Is this something that is clear cut or is this a gray area?

John Knight: I think this is clear cut. The Department of Education is the authority on how to interpret Title IX. There are some court decisions that have wrongly found that Title IX did not protect students to access the restroom consistent with their gender identity. Both of those decisions are on appeal, and we are confident that they will be overturned on appeal.

“She’s facing discrimination. She’s being singled out for treatment that no other student is faced with.”

–John Knight

What is the status on the appeals? When are they likely to be heard?

JK: I can answer as to the case that the ACLU is handling, which is the case in Virginia. We have filed our briefs. I’m not sure if the school district has filed theirs yet, but we are in the briefing stage in those cases in the Court of Appeals.

In the case of the transgender student in District 211, can you just explain to me the substance of the student’s complaint?

JK: She’s facing discrimination. She’s being singled out for treatment that no other student is faced with. So for the last couple of years, she has been forced to dress for sports or gym in a separate restroom a ways away from where the other students are, so that is just blatant discrimination.

As you know, the district says their policy is not discriminatory. Their policy allows her to access to the locker room, but they have screens for when she’s changing. They argue that they have come up with a reasonable compromise. Explain to me why you think they are wrong.

JK: First of all, they only came up with the proposal after the Department of Education finding that they were discriminating, but it is simply another form of discrimination. It’s just moving it into a different venue.

I’ve read newspaper articles quoting both parents and students saying that they would be uncomfortable having their daughter changing with someone who was born biologically male. Is there anything either in practice or in law that protects them?

JK: First, I’ve seen nothing of any student who has expressed any concern or discomfort. This just seems to be speculation on the part of the district. Secondly, if a student in fact does feel uncomfortable, then they should ask for a private room in which to dress. There are many, many districts that welcome transgender students into the locker room and there have not been issues or complaints – you know it can work and it does work in many districts in Illinois and elsewhere.

“It’s a fight that is extremely harmful for my client and other transgender youths throughout this country.”

–John Knight

Where do things stand with District 211, are you attempting to negotiate a settlement or is this something that will just go up through the courts until the Supreme Court decides the issue?

JK: It’s the Department of Education that is determining and trying to reach a resolution with the district, but the district instead is just engaged in a campaign to justify their discrimination. So it’s hard to see that the district is going to settle. I would love for them to. I would love for the district to see that this is a fight that isn’t worth happening. It’s a fight that is extremely harmful for my client and other transgender youths throughout this country. It’s the reason why we have just a horrible rate of transgender suicide amongst our youths when you engage in such a public attack on transgender students as the district has done.

Society is changing and attitudes to these kinds of issues can change very quickly (see gay marriage). When you are dealing with issues of human sexuality and definitions of self, do you think the law is adequately equipped to handle these issues?

JK: We have a federal law that prevents discrimination; it is there. It’s just a matter of getting it enforced and it takes a courageous client like mine to fight that battle. And it takes our persuading federal agencies like the Department of Education that this is something that they should in fact fight for. So I think the tools are there, but it is going to take some time to have a country in which transgender students are treated fairly across the country.

When did the ACLU get involved in this case?

JK: A couple of years ago we heard from the client about their efforts to … the parents’ efforts to advocate on behalf of their child and how it had reached an impasse over locker room access. So we began to represent our client and filed a complaint with the Department of Education on their behalf.

“She understands that this is a fight not only for her but for other students.”

–John Knight

Can you give me some sense as to how your client feels about this case and the discrimination she has felt? How has that impacted her and her education?

JK: She has experienced some problems in the last couple of years in which she has felt embarrassed by not getting the word about the fact that (transgender) students were not supposed to dress for gym (with other students), for example. But I think the key point is that having a school single you out in the way she has been when her fight to be seen consistent with her femaleness has been really harmful to her. That message sent by the school that we don’t actually recognize you as girl has been pretty difficult for her. And on the other hand, she feels very supported by her friends and the students at school, so she is actually doing fine. She understands that this is a fight not only for her but for other students. And she feels very strongly a sense of responsibility for continuing to fight for fairer treatment of transgender students, but there have been some difficulties because of the signal that is given to her that the school doesn’t see or recognize her for who she is.

Do you think there is there a generational split in the way people approach this issue?

JK: I do, in the same way young people were welcoming of lesbians and gays and bisexuals earlier than their parents. I think the same is true for transgender kids who are feeling much more welcomed by their peers than by adults who have not been in contact with or learned about what it means to be transgender.

What’s the next key date in this case?

JK: Under the Department of Education rules there’s a 30-day period after the finding (of non-compliance) came out and there’s an effort to continue to come to an agreement with the district. After that the department will begin enforcement. A point that should not be lost is that transgender people are facing discrimination in so many different aspects of their lives and to engage in a campaign to justify discrimination like that is only making things worse for a very vulnerable group of young people.

Interview has been condensed and edited.

Recent Court Rulings Against Transgender Students

Virginia Court Rules Against Transgender Student

Gavin Grimm, who was born female but identifies as male, is a student at Gloucester High School in Virginia. After alerting the school that he legally had his name changed and should be referred to by male pronouns, Grimm was granted access to use the boys’ bathroom, but approximately seven weeks later that access was revoked.

In December 2014, the Gloucester County School Board changed its restroom policy to only allow students to use restrooms of the corresponding “biological gender,” and students with “gender identity issues” could use a unisex bathroom, according to the ACLU.

The ACLU filed a suit against the school district arguing that the bathroom policy violated Grimm’s rights under Title IX. In September, a judge ruled against Grimm, allowing for the district’s biologically based bathroom policy to stay in place. The ACLU filed for an appeal in October. 

Court Rules University of Pittsburgh Didn’t Violate Title IX

Seamus Johnston, who was born a female but identifies as male, was an undergraduate student at the University of Pittsburgh where he was studying computer science. Johnston used the men’s bathroom without incident until he enrolled in a men’s weight training course and began using the men’s locker room, according to Inside Higher Ed.

The university asked Johnston to stop using the locker rooms, offering him the use of a unisex locker room instead. In the fall of 2011, the university notified Johnston he could resume using the men’s locker room if his school records were updated to reflect his gender as male, which required the presentation of a court order or birth certificate. Johnston did not update his records and continued using the locker rooms, and he was cited for disorderly conduct by campus police. The continued use of men’s facilities and subsequent interactions with campus police led to Johnston’s expulsion from the University of Pittsburgh.

In April, a federal judge dismissed a lawsuit by Johnston and upheld the university’s policy of requiring students to use bathrooms and locker rooms based on their birth sex. 

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