Guidance as Transgender Issues Continue to Evolve Nationally

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, Dec. 2, 2015

Issues regarding civil rights, Title IX and transgender students continue to pick up steam, both in Michigan and around the country. On Nov. 2, 2015, an Illinois school district was found to be in violation of Title IX by the U.S. Department of Education’s Office of Civil Rights for prohibiting a transgender student access to the girls’ locker room.

Several Michigan school districts have sought guidance with respect to accommodating the civil rights of transgender students. To date, these issues have largely involved matters of appearance, restrooms, overnight field trip accommodations and the like. District leaders have inquired about dealing with issues of sports team participation and locker room access, but so far, such matters have not come to the fore (although they are on the horizon).

Legal guidance, up to this point, has been to take each matter on a case-by-case basis; keeping in mind that the civil rights of a transgender student will always outweigh other individuals’ “sense of discomfort,” in the eyes of the OCR. The recent Illinois matter serves to underscore the point, as the district attempted to make several “compromise”-type accommodations, including private access to a single-occupancy restroom for gym class and an alternative restroom for swim class that contained many, but not all, of the typical locker room necessities.

From the outside, it would appear that this district provided very practical and reasonable accommodations for this student in an effort to balance her rights against those of other female students who were, apparently, uncomfortable with this transgender student’s presence in a communal changing area. However, while the OCR generally commended the district for the lengths that it went to as a means of treating this student consistent with her gender identity, the OCR ultimately concluded that allowing the student entry into the girls’ locker rooms is required for Title IX compliance, and failure to do so, despite exploring many alternatives, was a Title IX violation.

As it relates to this Illinois case, in the end, OCR suggested that installing and maintaining privacy curtains in all locker rooms, for all students to utilize “would allow for protection of all students’ rights.” It was noted that the district’s attempt to create a “separate but equal” changing room for the student failed because the changing room being offered was not comparable to the facilities being offered to other students. Hence, while “separate but equal” is still a doctrine that can be applied as it relates to gender-specific facilities, it is important to understand that providing a separate changing space for a transgender student is only a solution if the student accepts such an alternative. That student may then still challenge such an accommodation if it is not “equal” to the facilities offered to all other students.

The general rule will continue to be that if a transgender student wishes to have access to a bathroom or locker room that conforms to their gender identity, they must be granted such access. As such, installing privacy curtains that can be used by any and all students may be the most straightforward way to comply with Title IX as it relates to all students, transgender or otherwise. This allows all students with privacy concerns the ability to change privately.

If your district has any questions, please feel free to contact the MASB Legal Team at or 517.327.5900.

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