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.

Breaking Down OCR’s Recent Guidance on the Permissibility of Single-Sex Education

December 10, 2014

By Anthony Scariano III

As you may know, the United States Department of Education’s Office of Civil Rights (“OCR”) recently issued general guidance on the acceptability of offering single-sex classes and extracurricular activities in schools that receive federal financial assistance. In its guidance, the OCR reminds educators that Title IX does allow the intentional separation of students by sex in: (1) contact sports in physical education classes; (2) classes or portions of classes that deal primarily with human sexuality; and (3) non-vocational classes and extracurricular activities within a coeducational, non-vocational elementary or secondary school (i.e. the majority of course offerings in traditional K-12 public schools). However, the guidance overwhelmingly focuses on number (3) above; importantly, the criteria that need to be met in order to comply with Title IX when establishing single- sex classes and extracurricular activities.

In order to offer a single-sex class or activity, a school must meet a somewhat demanding two-part justification for doing so before offering the class or activity. First, each single-sex class must be based on an exceedingly persuasive objective to either: (1) improve educational achievement through diverse educational opportunities (the “diversity objective”); or (2) meet the particular, identified educational needs of its students (the “needs objective”). Second, the school must: (1) implement its objective in an evenhanded manner; (2) ensure that student enrollment in the single-sex class or activity is completely voluntary; (3) provide a substantially equal coeducational class in the same subject; and (4) periodically evaluate the class to ensure Title IX compliance.

Regardless of the objective that is asserted as justifying the gender separation, a school must show that the single-sex nature of the class is substantially related to meeting the identified objective. This, the OCR warns, must be directly supported by evidence. Such evidence may include the well-documented success of single-sex classes and activities in schools that are similar in population and setting, and research evidence that proves the effectiveness of single-sex classes and activities in similar circumstances.

Additionally, the OCR issued specific guidance on how to comply with the other aforementioned requirements. For example, the OCR details: (1) how to obtain “voluntary enrollment” in single-sex classes and activities; (2) what factors the OCR will consider when determining if a coeducational class is “substantially equal” to the single-sex class; and (3) how detailed the periodic evaluations must be, how often they must be issued, and to whom.

The OCR’s guidance regarding this issue is quite lengthy. It also provides numerous examples of how to comply with Title IX when offering these single-sex classes or activities. Before your District embarks to provide single-sex educational offerings, both we and the OCR recommend contacting your attorney to discuss the concept and strategize the appropriateness of the offerings. Similarly, if your district already provides single-sex offerings and you would like us to review compliance with Title IX, we stand ready to assist you. Since the OCR strongly recommends articulating a school’s justification for these classes and activities in writing and before offering the class or activity, please do not hesitate to inquire of your attorney at Scariano, Himes and Petrarca to complete this task for you.