Education Week - November 11, 2015 - 15

Ill. District Defends Its Treatment of Transgender Student
dence that the district is in violation of Title
IX for excluding Student A from participation
in and denying her the benefits of its education
program, providing services to her in a different
manner, subjecting her to different rules of behavior, and subjecting her to different treatment
on the basis of sex," OCR regional director Adele
Rapport wrote.
District leaders have rejected that legal
stance, arguing that by providing the student a
privacy area within the girls' locker room, they
are respecting the rights of all students.
The Illinois district is unique in resisting the
department's interpretation of Title IX. The
Education Department and U.S. Department of
Justice previously launched two investigations
of treatment of transgender students in public schools in California. Both those districts
entered into voluntary agreements to resolve
civil rights concerns before the investigations
were complete.
"We do not agree with [OCR's] decision and
remain strong in our belief that the district's
course of action, including private changing
stations in our locker rooms, appropriately
serves the dignity and privacy of all students
in our educational environment," Superintendent Cates said in a statement.
The letter to Cates is the latest phase of a
standoff that has been brewing since the transgender girl and her family filed a complaint
with the office for civil rights nearly two years
ago. It's also one of a series of moves the federal agency has made recently to advance its
interpretation that Title IX covers gender identity as well as sex and gender, creating obligations that public school districts must fulfill.

Lack of Legal Clarity
Making accommodations for transgender
students can create tensions in school districts.
Although transgender students make up a
small percentage of the population, advocates
say a growing acceptance of gender identity issues have encouraged many children to "come
out" earlier than they may have in previous
years. That means more schools are facing
questions about what they are legally required
to provide to transgender students.
"I've been teaching school law for 13 years
and every year there's kind of the 'it question'
I get from school administrators," said Suzanne
Eckes, an associate professor of education leadership who teaches about school law at Indiana
University Bloomington. "Now, in the past year,
I've been getting a lot of questions about 'what
should we do about our transgender policy?' "
When creating policies on the issue, district
leaders have been challenged by parents, students, and political groups who say issues related to transgender bathroom and locker room
use threaten the privacy rights of other students. Recently, students in a Missouri district
held a walkout to protest a new policy that allowed a transgender girl to use the girls' locker
room. Four school board members resigned in
the aftermath.
Further complicating the situation is a lack
of legal clarity that some districts have about
the issue, Eckes said. Advocates for LGBT
students have leaned on the Education Department to issue more specific civil rights
guidance to states and districts about schools'
responsibilities under Title IX in regards to issues like facilities, pronouns, and records for
transgender students.
But the agency's interpretation does not
carry the force of law, so such guidance may
not be the final word many are looking for
about an issue that can be controversial for
some, Eckes said.
To this point, legal precedents on the issue

Robert Cohen/St. Louis Post-Dispatch/AP-File

CONTINUED FROM PAGE 1

are largely pending before state courts and
civil rights boards, which means they don't
hold weight elsewhere, she said.
Seventeen states or districts, as well as the
District of Columbia, have more general laws
that prohibit discrimination on the basis of
gender identity. Those states include California, which implemented a law that explicitly
lists transgender student protections in 2014.
Opponents later tried, and failed, to overturn
the new law.
Legislators in other states, such as Utah, have
proposed laws that would restrict access to student facilities to those who match their sex at
birth, but none of those bills have passed.
A federal judge recently dismissed a Virginia transgender student's Title IX argument
in a preliminary hearing. That student has
requested a new judge in the case, saying the
current judge has called gender dysphoria a
"mental disorder." He has also appealed the
judge's initial ruling.
The Education Department filed an amicus
brief in that case with the U.S. Court of Appeals for the Fourth Circuit, siding with the
student and backing his argument that prohibiting him from using the restroom of the gender he identifies with constitutes "differential
treatment on the basis of sex under Title IX."

A Difficult Case
In the Illinois district, the transgender student was born male, but identified as a female from a young age, and by middle school,
had transitioned to living full-time as a young
woman, according to the OCR's letter. During
her 8th grade year, the student's parents were
in frequent communication with educators at
the high school she would be attending to discuss her name change, registration as a female
student, access to girls' restrooms and locker
rooms, and eligibility for girls' sports teams.
According to OCR's letter, the district honored
the student's "request to be treated as female in
all respects except her request to be provided
access to the girls' locker rooms at the school."
In December 2013, the student filed a formal
complaint with the civil rights office.
Initially, the district provided the student
access to a single-occupancy restroom near

the gymnasium as a private place to change
for P.E. class, installing a locker for her there.
The student "expressed dissatisfaction" with
that arrangement, according to OCR's letter,
so the district offered an alternative location
that would have allowed her to change in a restroom adjacent to the girls' locker room and
installed a bank of lockers there for the student
and friends of her choosing "who would be comfortable changing alongside her." But, the student said, that arrangement would "ostracize"
her more by drawing attention to the fact that
she must change separately. She opted to keep
using the single-occupancy restroom.
The student also complained about the alternative changing environments the district
provided her during swimming class, as well as
her lack of full access to the girls' locker room
as a member of one of her school's girls' sports
teams.

Privacy Curtains
As of late last month, the district had installed privacy curtains in the girls' locker room
that is used for P.E. classes but has not done the
same for the locker rooms used for swimming
classes and for sports teams, according to OCR.
District officials have indicated that they won't
grant the student full access to the girls' locker
room unless she is required to use the private
changing areas.
And in a written response to OCR's latest
salvo, district leaders showed no signs of backing down.
In his statement, Superintendent Cates calls
OCR's position as "serious overreach with precedent-setting implications."
But Assistant Secretary for Civil Rights Catherine Lhamon disagreed, saying the district's
policy of providing private accommodations for
transgender students "is not following the law."
"All students deserve the opportunity to participate equally in school programs and activities-this is a basic civil right," Lhamon said in
a statement. "The district can provide access to
this student while also respecting all students'
privacy. We encourage the district to comply
with the law and resolve this case."

Lila Perry, second from left,
a senior transgender student
at Hillsboro High School in St.
Louis, speaks with friends
Gianna Warfel, left, Skyla
Thompson and Hayley Reeves
following a student walkout at
the school held in both support
and opposition to Perry's
request to use the girls'
bathrooms and locker rooms.

... I've been getting a lot
of questions about
'what should we do
about our transgender
policy?' "
SUZANNE ECKES
School law expert, Indiana University
Bloomington

Staff Writer Corey Mitchell contributed to this report.

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