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In a matter receiving national media attention, the United States Department of Education’s Office for Civil Rights (“OCR”) recently determined that an Illinois school district violated Title IX by excluding a transgender student  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.” Specifically, the district denied the student access to the locker room of her gender identification.

In December 2013, the student filed a complaint alleging that the Township High School District 211 denied her access to the girls’ locker rooms because of her gender identity and gender nonconformity, violating Title IX. On November 2, 2015, OCR concluded its almost two-year investigation.

As stated in the OCR ruling, the student was born male, but from a young age has identified as female. During her middle school years, the student transitioned to living full-time as a young woman, presenting in a female appearance, completed a legal name change, and obtained a passport that reflected a gender change to female. She also was diagnosed and treated for gender dysphoria and takes an ongoing course of hormone therapy.

Prior to matriculating to high school,  the student  and her parents contacted the high school to discuss the student’s name change, her registration as female, her access to girls’ restrooms and locker rooms, and her eligibility for girls’ athletics. The family informed the district that the student had been subjected to harassment in middle school when she accessed the boys’ locker rooms.

In response, the district honored the student’s request to be treated as female in all respects except allowing her access to the girls’ locker rooms at the high school. The student is identified by her female name, is designated as female in her student records, has unlimited access to all girls’ restrooms in the school, and can participate in girls’ athletics.

The district, however, refused to allow the student access to the three girls’ locker rooms at the school, which include the regular P.E. locker room, the locker room near the pool, and the locker room used for girls’ athletics, due to the privacy concerns of other students. Instead, the district offered the student access to alternative locations to change, such as a single-occupancy restroom with lockers installed or separate restrooms by the pool, which OCR determined were not comparable to those provided to other students.

The district did not dispute that it had denied the student access to the girls’ locker rooms. However, it asserted legitimate, nondiscriminatory justification that it based its decision on the needs of all students, balancing the student’s rights and interests with the privacy concerns of other female students.

OCR found the district’s arguments unavailing since, given the fact that the student had asserted her intention to change privately, the district could afford equal access to its locker rooms for all students if it installed and maintained privacy curtains in its locker rooms in sufficient numbers to be reasonably available for any student who wanted privacy.

OCR’s efforts to resolve this complaint voluntarily with the district recently succeeded. On December 3, the Board of Education for the district reached a Resolution Agreement with OCR. Without admitting any violation of federal law or regulations or losing any federal funding, the district agreed to allow the student to access the girls’ locker rooms at the school if she uses private changing areas.

The district also will install and allow any other students who desire it to use a private changing area or shower in the locker rooms. Furthermore, the district will engage a consultant expert in child and adolescent gender identity and revise the district’s nondiscrimination notice to provide additional information about sex discrimination. If requested, the district will provide a support team to the student to provide her access to all school and district facilities and activities.

HLERK has been actively involved in advising school districts throughout Illinois on transgender student issues. Contact Michelle Todd with your inquiries.