Township High School District 211 in Palatine, Illinois responded recently to a discrimination claim brought by a transgender high school student on the basis of sex when the district denied her access to the girl's locker room.

This student was born male and from a young age identified as a female. During the student's middle school years, she transitioned to living full-time as a young woman. She presented with a female appearance, completed a legal name change, and obtained a passport reflecting the gender change.

During her 8th grade year, her family and the high school she would join the following school year communicated extensively about issues regarding the student's name change and registration as a female, as well as access to girl's locker room and her eligibility for girl's athletics.

The Palatine School District identified the student by her female name, designated her as a female in the district's computer system, and allowed her to participate in girl's athletics. The district honored the student's request to be treated as a female in all respects, except her request to be provided access to the girl's locker room.

The student was informed by the district that she would not be allowed to access the girl's locker room at the school. They denied her request to change privately in the locker rooms because there were too few stalls and too many students. The district proposed alternatives for changing for PE class and athletics. The district claimed their decision was based not only on the individual student's rights and needs but on the privacy concerns of all students. The student requested that she be treated like every other girl at the school and was disappointed with the district's decision, which she claimed indicated the school was not accepting her as a female.

The student indicated during an interview in February 2014 that she had her own sense of privacy, and if granted access to the girl's locker room, would seek out an unobserved area for changing such as a restroom stall, which she claimed was a common practice among some girls at the school. She also indicated she would use privacy curtains in the girl's locker room, if the school made them available.

OCR Investigation

The U.S. Department of Education's Office for Civil Rights (OCR) investigated the complaint. It completed its investigation of the complaint filed in December 2013 against Township High School District 211 (District). The District was composed of five high schools and the complaint of discrimination was filed by the student claiming discrimination on the basis of sex because she was denied access to the girl's locker room due to her gender identity and gender non-conformity.

The OCR issued its decision on November 2, 2015 indicating it was responsible for enforcing Title IX of the Education Amendments of 1972 (Title IX). 20 U.S.C. § 1681-1688. The OCR asserts that Title IX prohibits discrimination on the basis of sex in any education program or activity operated by recipients of federal financial assistance and asserted their jurisdiction over the complaint. Their decision reviewed all the facts described above and in significant detail the efforts to accommodate the competing interests relative to the transgender student's request for access to the girl's locker room.

The OCR investigation revealed that with the exception of the transgender student's request for locker room access, the district treated the student's gender identity as a girl. They determined that the district's denial of her access to the girl's locker room meant that she received unequal opportunity to benefit from the district's education program and experienced an ongoing sense of isolation and ostracism at the school.

The OCR found that the district denied the student access to the girl's locker room for more than two years and had only operated separate facilities to change clothes for PE and athletic activities. They found that the district could easily satisfy the Title IX obligations as well as protect potential or actual student privacy interests by installation and maintenance of privacy curtains in one locker room. This would achieve a non-discriminatory alternative because providing sufficient privacy curtain access to any student who wished to be assured of privacy would allow for the protection of all student rights in this context. The transgender student had consistently made it clear that she would use privacy curtains if allowed to access the girl's locker room.

The student's stated intention to change privately was significant because the district could afford equal access to its locker room if it installed and maintained privacy curtains in sufficient numbers to be reasonably available to any student who wanted privacy. Given the totality of the circumstances, the evidence weighed in favor of the district granting the student equal access to the locker rooms while protecting the privacy interests of the students.

The OCR determined that the district, on the basis of sex, excluded the student from participating in and denied her benefits of its education program because it provided her different benefits or benefits in a different manner and subjected her to different rules of behavior and different treatment in violation of Title IX.

The district was given 30 days to resolve the matter consistent with the OCR determination or risk having their federal education funding suspended or terminated and referred to the Department of Justice. The district voted to give the transgender student access to the locker room and settled the case. The 5 to 2 vote in favor of resolution came as a deadline loomed before penalties would be applied.

This case thrust the district into a national spotlight, caused divisions in the community, and sharp criticism. With the settlement, the student agreed to use private areas of the locker room to change and shower. However, the Department of Education Assistant Secretary for Civil Rights commended the district for agreeing to follow the law. The Assistant Secretary said that the agreement strikes a balance between respecting individual privacy while ensuring that all students have an opportunity to participate in school programs and activities.

The OCR reviewed the circumstances surrounding the transgender student's request to access the locker room and determined that there was a reasonable accommodation that would have satisfied both the specific concerns of the transgender student as well as the privacy concerns of all of the students. The district believed that equal access to the locker room was available to protect the privacy interests of all students, including the transgender student, if the district installed and maintained privacy curtains. As is true with most governmental agencies investigating claims of discrimination, every effort must be made to attempt to find a reasonable accommodation that deals with the interests of all involved.