November 6, 2015

By A. Lynn Himes and Parker R. Himes

On November 2, the Department of Education’s Office of Civil Rights (“OCR”) concluded that a Chicago-area high school district discriminated against a transgender female student by prohibiting her use of the girls’ locker room.

 The student had been born male but had identified from a young age as female.  During middle school, the student transitioned to living full-time as a female.  Since middle school, the student has presented female appearance, completed legal steps (e.g. obtaining a passport reflecting the gender change), and taken an ongoing course of hormone therapy.

Before enrolling at the high school, the student’s parents communicated extensively with the district to plan her transition to high school.  The district honored the student’s request to be treated as female in all respects except the request to be provided access to the girls’ locker rooms.  Importantly, the district identifies the student by her female name and uses female pronouns, designates her gender as female in its computer system, provides her unlimited access to the girls’ restrooms, and, upon receipt of permission by the IHSA, allows her to participate in girls’ athletics. 

 After multiple conferences with the parents and a tour of the girls’ locker room facilities, the superintendent concluded, however, that it would not be practicable to honor her request to change privately in the locker rooms because the stalls were too few and the students too many.  The superintendent explained that the decision was based not only on the particular student’s rights and needs, but also on the privacy concerns of all students.

OCR’s legal analysis begins with the acknowledgement that the district “has treated [the student] consistent with her gender identity as a girl,” yet, “as a result of the District’s denial of access to the girls’ locker rooms, [the student] has not only received an unequal opportunity to benefit from the school’s educational program, but has also experienced an ongoing sense of isolation and ostracism throughout her high school enrollment at the school.”  Further, “[t]he denial of access has also meant that, in order to satisfy her graduation requirements and receive a high school diploma, [the student] has no other option but to accept being treated differently than other students by the District.”  Based on evidence that the district had installed some privacy curtains in one of its locker rooms, OCR also concluded that the district could accommodate the student by installing privacy curtains in all the locker rooms, something that OCR declared that the district had the financial ability to do.

 While this OCR opinion is technically binding on only the district involved, it likely forecasts how OCR will come down on a similar matter.  Courts across the country, however, have not uniformly followed OCR, resulting in court opinions that come down on either side.  The Firm will be monitoring this issue and will keep you informed of any important developments.

Should you face a similar issue, we urge you to contact an attorney at the Firm so we may help guide you through this novel area of the law.