Illinois Transgender Update

By January 8, 2018 News No Comments

On November 30, 2017, Nova Maday, a transgender Palatine High School senior who identifies as female, filed suit in the Circuit Court of Cook County, Illinois (state court) against Township High School District 211. According to Maday’s complaint, during all of her time as a high school student at the District, Maday presented as female and went by her female name and female pronouns. However, she was not permitted to use the girls’ locker room the same way other female students were. At first she was only permitted to use a separate, private room for changing before P.E. class. However, according to Maday, this meant she missed announcements posted in the locker room with the location of the day’s P.E. class. Maday then did not know where to report and would frequently be late for class as she searched for the class, causing her P.E. grade to suffer.  More recently, Maday was permitted to change in the female locker room if she changed in an isolated, private area unlike other students. Maday objected to this because she was being treated differently than other female students. Maday’s suit claims that these actions violated her rights under the Illinois Human Rights Act. Further, Maday’s complaint stated that she would not observe others change in the locker room and would modestly change into her own P.E. clothes without completely undressing, as many high school students do.

This is not the first time this District has had to grapple with locker room access for a transgender student. In 2015, the District settled a complaint brought by another transgender female student with the U.S. Department of Education, Office of Civil Rights over the student’s access to the girls’ locker room. The District and student agreed that the student could change in the girls’ locker room, so long as she used a privacy stall. However, Maday says she was told that that the agreement only applied to that student and that similar privacy stalls could not be installed at Palatine High School. As a result, Maday accepted a P.E. waiver for her junior and senior year and filed a complaint with the Illinois Department of Human Rights. The Department issued a notice of dismissal of the claims for lack of substantial evidence and then Maday sued in court. On December 1, 2017, the District issued a statement indicating that Maday’s court complaint misrepresented the accommodations it had offered her. The District must file its formal response to the suit by January 3.

The law governing school districts’ obligations to accommodate transgender students is a complex, developing area. Contact Michelle Todd with all of your transgender student inquiries.

 

Federal Judge Denies Preliminary Injunction in Transgender Case– On December 29, 2017, Untied States District Judge Jorge L. Alonso denied Students and Parents for Privacy’s request for a preliminary injunction to bar transgender students at Township High School District 211 from using facilities that correspond to their gender identity.

Students and Parents for Privacy moved for the preliminary injunction on May 23, 2016. With the preliminary injunction, they sought to require the District to segregate facilities based on a student’s biological sex by enjoining: (1) a District agreement with the Office of Civil Rights, which permitted a transgender student to use the locker room that corresponded to her gender identity, (2) the District’s policy of allowing transgender students to use the facilities that correspond to their gender identity, and (3) a Federal rule requiring schools to allow students to use restrooms and locker rooms consistent with their gender identity.

On October 18, 2016, Magistrate Judge Jeffrey T. Gilbert recommended a denial of Students and Parents for Privacy’s request for a preliminary injunction. Students and Parents for Privacy subsequently filed objections. While objections to the recommendation were pending, the student who was the subject of the District agreement with the Office of Civil Rights graduated, terminating the agreement. Additionally, the Federal rule was withdrawn. Therefore, only portions of the objections remained at issue.

In denying the preliminary injunction, Judge Alonso determined Students and Parents for Privacy did not establish they were likely to succeed on the merits of their argument. Specifically, Students and Parents for Privacy argued that allowing transgender students to use facilities that correspond to their gender identity violates Title IX and the privacy rights of the students with whom the facilities are shared.

The crux of their Title IX argument is that the term “sex” is unambiguous and refers to an individual’s biological sex. Judge Alonso rejected the argument and found, “the Seventh Circuit has since conclusively held, federal protections against sex discrimination are substantially broader than based only on genitalia or chromosome.” He cited Hively v. Ivy Tech Cmty. College of Indiana and Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Education, two recent Seventh Circuit cases which rejected the narrow definition of “sex.”

With respect to the privacy argument, Judge Alonso again relied on Whitaker and found it likely to be unsuccessful, stating that “the restroom at issue here have privacy stalls that can be used by students seeking an additional layer of privacy, and single-use facilities are available upon request.”

Regardless of whether Students and Parents for Privacy were likely to prevail on their arguments, Judge Alonso determined they would be unable to establish they would suffer irreparable harm should the injunction not be granted or that they lacked an adequate remedy at law should they prevail on the merits. Students and Parents for Privacy argued students would be late to class if they have to use different restrooms to avoid transgender students or would suffer emotional damages if they have share facilities with transgender students. Judge Alonso determined that there is no risk of irreparable harm for running late to class, and emotional damages are typically compensated by monetary awards.

This order is another victory for transgender students.

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