Since 2015, Township High School District 211 (D211), a public school district of the Chicago suburbs, has been the epicenter of multiple controversies surrounding its policies toward transgender student locker room access. D211 was the first school district to be found in violation of civil rights law on the basis of transgender issues by the United States Department of Education's Office for Civil Rights (OCR). A lawsuit involving D211's policies toward transgender students was the first legal challenge to the Obama Administration's interpretation of Title IX as allowing transgender students to use the locker room and bathroom facilities corresponding to their gender identity.
Student A
Background
On June 23, 1972, Richard Nixon signed the Education Amendments of 1972 into law, regarding the federal government's policies toward institutions of higher education. Title IX of the act states:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance...
-- 20 U.S.C. §§ 1681
Congress gave the executive branch wide purview in enforcing Title IX. While Title IX explicitly prohibits sex discrimination in educational programs and activities (including school athletic programs) which receive federal funding, it did not enumerate specific ways in which this was to be implemented. The Department of Education has therefore historically created sub-regulatory guidance to enforce Title IX. These rules must be followed by all educational institutions receiving federal dollars, including 16,500 school districts and 7,000 colleges, universities, and other post-secondary schools.
The Office for Civil Rights, which is responsible for implementing Title IX within the Department, issued several "Dear Colleague" letters under the Obama Administration detailing public policy regarding LGBT students. In 2010, OCR released one such letter stating that while Title IX did not prohibit LGBT-based discrimination, it did prohibit discrimination toward LGBT students based wholly or in-part on sex. A 2014 document from the OCR stated that Title IX covered gender identity and gender nonconformity based discrimination.
OCR investigation
In December 2013, a student from William Fremd High School, a part of District 211, filed a complaint under Title IX with the Office for Civil Rights. The student, named only as "Student A," was born male but identified as female at an early age. From the filing of the complaint onward, she was represented by the ACLU of Illinois. Student A's complaint alleged that the district had discriminated against her because she was denied use of the girls' locker room and was required to dress in a separate, private bathroom. D211 said that in making their decision to deny access, they weighed Student A's rights with the right of other students to privacy. D211 determined that they could not allow Student A access because it would result in students of opposite biological sex viewing each other's bodies. OCR found the concerns to be "unavailing." OCR told the district in July 2015 that it had violated Title IX because it discriminated against Student A on the basis of sex. Neither OCR nor Student A alleged that there was a hostile environment or that the district's discrimination went beyond locker room access. In October 2015, the district installed privacy curtains in the girls' locker room and stated that it would not allow Student A to change in the locker room unless she was required to use the privacy curtains. Student A said she would use the curtains if available. OCR disagreed with the district's stated policy of requiring Student A to change behind the curtains because "those female students wishing to protect their own private bodies from exposure... could change behind a privacy curtain." Allowing Student A access to the girls' locker room with the requirement that she change in private was not an acceptable solution to OCR.
OCR and D211 engaged in negotiations nine times to resolve the Title IX violation. On October 12, 2015, the district stated that it would not resolve the issue voluntarily following a collective decision by the school board and district administration. On November 2, 2015, OCR sent a letter to D211 superintendent Dr. Daniel Cates to inform him that if an agreement was not reached in 30 days, it would enforce Title IX. Enforcement could have jeopardized the yearly $6 million in federal funding which D211 received. At the time, the district's budget was $240 million. Superintendent Cates viewed the decision as an overreach.
D211 response
On December 2-3, a 2015, the last days before OCR would enforce Title IX, D211 held a school board meeting to determine what action should be taken. In the preceding month, the district had negotiated with OCR and reached a resolution agreement approved by OCR but requiring a vote by the school board. The agreement was summarized as follows:
Based on the representation of the individual student who filed the OCR complaint that the student will change in private changing stations, the district agrees to provide the student with access to locker room facilities designated for the student's identified gender;
Any student will have access to privacy accommodations in the locker room through a variety of individual options;
This agreement pertains solely to this individual student and does not require a district-wide policy;
The agreement makes no reference to the District violating any regulation or law and reiterates that the District categorically refutes the notion of any violation of law or form of discrimination.
-- Mucia Burke, President of the D211 School Board
The board meeting included a two-hour period for public comment. Parents and students addressed the board with their views regarding Student A's use of the locker room. A majority of comments were against the settlement.
After a three-hour closed-door meeting, the school board voted 5-2 to accept the agreement with OCR. Mike Scharringhausen, Anna Klimkowicz, Robert LeFevre, Will Hinshaw, and Mucia Burke voted for the resolution. Lauanna Recker and Peter Dombrowski voted against.
Disagreement over the agreement
The agreement between D211 and OCR included language which stated that the district would allow Student A girls' locker room access "based on Student A's representation that she will change in private changing stations." The agreement did not state specifically that Student A would be required to change in a privacy stall. The district would also have to take a number of other measures as part of the resolution, including providing a "reasonable alternative" to any student who requested additional privacy. District officials had said that the terms of the agreement with OCR only applied to Student A. On December 3, after the board voted to accept the resolution, Catherine Lhamon of OCR said that it was "facially inconsistent with the terms of the agreement" for the district to adopt this view, adding that OCR would continue to enforce Title IX in any case where the district refused locker room access. In addition, Lhamon said that the agreement allowed Student A unrestricted access to the locker room. On December 4, Superintendent Cates released a statement in response to Lhamon which reiterated the district's view that the agreement only applied to Student A. In that statement, Cates also said that if Student A's actions did not match her representation that she would change in private, the district would revoke her girls' locker room access. A statement later released by the ACLU spokesman Ed Yohnka agreed with OCR's view that the agreement did not require Student A to change in private. Yohnka also said that it would seem unreasonable for OCR not to defend any other transgender student who should request locker room access consistent with gender identity. On December 7, the district received a letter from Lhamon which stated that the agreement provisions specific to locker room access did not apply district-wide. Furthermore, Lhamon said that D211 agreeing to allow Student A access to the girl's locker room "is based on the student's representation that she will change in private changing stations."--language very similar to the terminology already at issue in the agreement. The Chicago Tribune noted that both OCR and D211 seemed to agree that the provisions regarding locker room access applied in one case, while the other provisions of the resolution applied district-wide.
D211 held a school board meeting on December 7, four days after they had accepted the resolution, to reassess the district's standing relative to the agreement. As before, the district had a period for public comment, which was significantly more supportive of Student A's case than the previous one. After a lengthy closed-door meeting, the school board announced that it would not overturn the agreement.
Policy changes
On May 13, 2016, the Department of Education and Department of Justice issued a "Dear Colleague" letter which updated the federal government's official view on Title IX. In general, the letter stated that discrimination based on transgender status or gender identity is sex discrimination, and is therefore prohibited under Title IX.b The letter spoke specifically on transgender student use of bathrooms and locker rooms, citing Student A's case resolution:
A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user options available to all students who voluntarily seek additional privacy.
Lawsuit
On May 4, 2016, a group of D211 students and parents sued the district, Department of Education, and Department of Justice in federal court, alleging that allowing Student A access to the girls' locker room was a violation of their civil rights. The group, Parents for Privacy (sometimes called D211 Parents for Privacy, Students and Parents for Privacy, or simply PFP), said that the federal government violated the students' privacy rights as well as the parents' constitutional rights to "instill moral standards and values in their children." The Thomas More Society and the Alliance Defending Freedom supported PFP in the suit.
On May 26, 2016, Student A, two younger transgender students (called Students B and C), and the Illinois Safe Schools Alliance filed a motion to intervene in the PFP lawsuit. Student B and Student C both attended feeder schools to D211. All three students were represented by the ACLU. In June, Judge Jorge Alonso granted the motion. The district did not oppose.
In August 2016, PFP sought an injunction which would temporarily prevent transgender students from any access to the school locker rooms which matched their gender identity. In October 2016, Magistrate Judge Jeffrey Gilbert recommended that the injunction be denied because high school students "do not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs."
In May 2017, Student A graduated from William Fremd High School. The lawsuit was not dropped because the case was considered "capable of repetition, yet evading review." In July, PFP dropped the Department of Education and Department of Justice as defendants because under the Trump Administration they had rescinded the Obama-era policies which interpreted Title IX as requiring schools to provide locker room access based on gender identity.
In December 2017, Judge Alonso denied PFP the injunction they had filed for in August 2016, agreeing with the preliminary decision made by Magistrate Judge Gilbert. Alonso said that there was "no indication that anything has negatively impacted" the education of the PFP students. At the time, PFP's attorneys said they were reviewing options to appeal.
Election
On April 4, 2017, D211 held an election for three of the seven board seats. The seats of Robert LeFevre, Anna Klimkowicz, and Mike Scharringhausen were up for election; LeFevre and Klimkowicz ran for reelection. All three seats were occupied by board members who voted to accept the agreement with OCR. The other candidates for the three open board seats were Katherine David, Ralph Bonatz, Jean Forrest, and former board member Edward Yung. David, Bonatz, and Forrest ran as a slate who publicly opposed the board's agreement with OCR. The three had pledged to end gender identity-based locker room access to transgender students as well as bathroom access, which the district had allowed previously without pressure from OCR. LeFevre, Klimkowicz, and Yung ran independently of each other, but generally supported the agreement with OCR.
Klimkowicz, LeFevre, and Yung won the three open board seats.
Nova Maday
Background
On February 22, 2017, OCR and the Department of Justice released another "Dear Colleague" letter on transgender students. This letter withdrew the 2016 letter released under President Obama which had generally stated that discrimination based on gender identity and transgender status were prohibited under Title IX. Under these guidelines, OCR would not require schools to give gender identity-based bathroom and locker room access to transgender students.
Title IX does not expressly prohibit discrimination based on gender identity, but it does expressly prohibit discrimination based on sex in schools receiving federal funding. The Obama Administration was able to extend Title IX protection to gender identity because Congress gave the executive branch some power in interpreting and implementing Title IX. For the same reason, the Trump Administration was able to implement Title IX in a way which does not cover gender identity. Unlike Title IX, the State of Illinois explicitly prohibits discrimination based on both sex and gender identity in public high schools. The State also allows certain private facilities such as bathrooms and locker rooms to be exempted from restrictions on sex discrimination.
In May 2017, Student A graduated from D211, terminating the agreement with OCR. Although the agreement's provisions specific to locker room access applied only to Student A, the district allowed other transgender students gender identity-based locker room access under similar terms.
Case
On November 30, 2017, Nova Maday, a transgender senior at Palatine High School, filed a state lawsuit against D211 with the help of the ACLU and a Chicago law firm. She alleged that the district had discriminated against her by denying her full use of the girls' locker room. Maday said that the district had initially refused her any access to the girls' locker room and then granted her limited access on the pretense that she would change in private. According to the lawsuit, this requirement was not implemented for other students and negatively impacted Maday's mental health and grade in physical education. She contended that this was a violation of the Illinois Human Rights Act and sought gender identity-based locker room access for all students as well as damages for emotional distress and loss. Superintendent Cates said that Maday's lawsuit misrepresented the accommodations the district had made for her.
In January 2018, PFP and the Thomas More Society successfully intervened in Maday's lawsuits as defendants.
Maday sought an injunction which would temporarily remove the requirement that she change in private in the girls' locker room. On January 25, 2018, Judge Thomas Allen denied her request because the Illinois Human Rights Act required only "access" to school facilities, instead of "full and equal access" which was removed from the final draft of the bill.
Maday appealed the ruling of Judge Allen. Although Maday graduated in May 2018, the appellate court took her case under consideration because it was likely to repeat.