More on the Transgender Front

Joel Gerring

By Joel Gerring, MASB Assistant Legal Counsel

DashBoard, Dec. 16, 2015

In the Dec. 2 DashBoard, we wrote about the evolving situation concerning a transgender student in Illinois and how the Department of Education’s Office of Civil Rights had determined that prohibiting that student (a biological male who identifies as female) from full access to the female locker room was a Title IX civil rights violation. Since that OCR finding, which occurred on Nov. 2, 2015, a settlement between the district (Palatine-Schaumburg) and OCR was reached.

This settlement is noteworthy because, in a bit of a reversal from previous arrangements, the OCR came to a compromise agreement with the district that does not provide the student with unrestricted access to the locker room of her choice. Instead, the student will continue to use a separate changing area within the locker room.

Leading up to this settlement, OCR had been sending a very strong message that, under Title XI, transgender student rights should be wholly, or nearly wholly, unrestricted. This case marked the most prominent challenge regarding locker room usage by a transgender student and came on the heels of other decisions concerning restroom access. Up until this point OCR had, almost universally, come down on the side of transgender civil rights, and brokered very little by way of compromise. However, this latest agreement appears to “pump the breaks” on OCR’s otherwise hard-charging stance.

LGBT and ACLU leaders were disappointed by the compromise as they had originally hoped that this case would be a model for how school districts would handle such matters moving forward. For its part, the district essentially received the compromise that it had been seeking since the start of OCR’s investigations, although some within the community remained dissatisfied that district leaders agreed to a deal that allowed the student even limited access to the locker room.

In an additional twist to this case, after the compromise had apparently been reached, the district received a letter from OCR that appeared to assert that the settlement applied districtwide and, ostensibly, to all such cases moving forward, as opposed to being a “one-time” solution and only for the particular student at issue. The district disagreed with this assertion and threatened to rescind the agreement as a result. In response, in what would appear to be yet another compromise, OCR then issued another letter that clarified that the solution reached between the district and the agency applied only to this particular situation and this particular student; a move that dismayed civil rights groups even further.

Of course, some community members continue to voice their opposition to the compromise as it still allows a biologically male student access (albeit somewhat restricted) to a female locker room. Meanwhile, district leaders received not only the compromise they were hoping for (a private changing area within the student’s locker room of choice), but an acknowledgement from OCR that this particular set of circumstances does not set the precedent for how similar, future situations within the district will be handled. Overall, given the specific manner in which this situation evolved, it is unclear how much this particular case will guide us moving forward.

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