Will Township High School District 211 become synonymous with transgender rights in the same manner as the Topeka Kansas Board of Education became synonymous with civil rights?

In March 2014, Haight Brown & Bonesteel provided a client advisory for California public school districts concerning Assembly Bill ("AB") 1266 which allowed students to participate in sex- segregated school programs (i.e. girls’ volleyball) consistent with their gender identity. AB 1266 also expressly allowed students to use restrooms and locker rooms facilities consistent with their gender identity. The advisory sought to identify issues related to the implementation of AB 1266, and provide possible strategies. The advisory posed several questions, including: Do schools have to create new bathrooms? Must schools create transgender locker rooms? How do schools protect student privacy in an open locker room? Are opposite sex students allowed to share locker room facilities?

The 2014 advisory offered districts guidance regarding restroom and locker room facilities:

• Restroom/Locker Room Accessibility - All students must have access to a restroom and/or locker room that corresponds with their gender identity. Any student who needs or desires increased privacy should be provided access to a reasonable alternative.

The prescience of the anticipated challenges, if not the multi-tiered complexity of the issues has developed into clearer focus. On November 2, 2015, the United States Department of Education, Office for Civil Rights ("OCR") found Township High School District 211 (“District”) in violation of Title IX for not providing a transgender student full access to a high school locker room. OCR Case No. 05-14-1055, ("OCR letter") has been described as a "momentous" milestone in the cultural wars concerning transgender students. However, that may be an oversimplified analysis. What the media may be missing is that this extremely fact-specific and highly-nuanced decision is neither precedential nor surprising. Instead, it is the product of a consistent and concerted policy by the United States Department of Education to ensure that the letter of Title IX applies to all students regardless of their gender identification. The more important message for public schools is that you cannot rely on "generalized assertions" and "balance interests" when it comes to legal mandates. The law is the law. What the Supreme Court held in Brown v. Board of Education, remains as true today. …separate is not equal.

I.     THE OCR LETTER

OCR concluded that the District's locker room policy was violative of Title IX because a student who identified as a girl was denied access to the girl's locker room. By strictly enforcing Title IX OCR confronted long-standing, preconceived notions about transgender students in sex segregated programs. First, OCR addressed the belief that transgender or gender nonconforming students’ presence in the locker room necessarily compromises the safety and privacy of gender conforming students. And, second, providing the students different, sometimes referred to as "neutral" facilities is an legally acceptable means to balance opposing viewpoints. As the following will demonstrate, although the District was extremely accommodating and progressive, its unwillingness to let go of preconceived notions proved to be its undoing.

        A.    Student A - “…she just wanted to be a girl like every other girl.”

Student A is a sympathetic and serious complainant. Student A was born male and has identified as a female from an early age. During middle school, she transitioned into living as a full-time young woman. She is presents as a female in appearance, completed a legal name change, and obtained a passport identifying her as a female. She has been diagnosed and treated for gender dysphoria, and is engaged in ongoing hormone therapy. Student A had been subjected to harassing comments during middle school in the boys’ locker room. Consequently, her parents met with the District to facilitate the high school transition. They addressed such issues as her name change, registration as a female, access to girls’ restrooms and locker rooms and participation in girls' athletics. Student A enjoys the support and encouragement of many students and staff members, and has taken significant steps to transition into a female.

        B.    The District - “…based its decision on the needs of all students,”

The District has been similarly sympathetic to Student A's request to be treated as a young woman. The District refers to Student A by her female name and uses female pronouns. The District’s computer system designates her as a female. The District has given Student A unlimited access to all girls’ restrooms and allows her to participate in girls' athletics. The District went so far as to install a bank of lockers at the school so Student A could change near the gym like other girls. The District provides an annual notice prohibiting discrimination on the basis of gender and maintains a Board policy prohibiting discrimination on the basis of gender and sexual orientation. The District has a Title IX Coordinator and appropriate complaint procedures. By all outward appearances the District understands the issues and has treated Student A consistent with their gender identity in all respects … except one.

        C.    The Dispute Over Locker Room Access - “…They're naked, but to varying degrees,”

As stated above, the parties had been able to resolve many issues, including restrooms. However, a dispute crystallized over locker room access. Student A requested an opportunity to change, in an area such as a restroom stall, within the confines of the girls' locker rooms. The school had three separate locker rooms: Physical Education ("PE"), PE-pool, and athletics. Although the District provided alternative options for changing for PE class and athletics, Student A was denied access to all three locker rooms.

Student A tried, but became dissatisfied, with the alternative PE options. The District provided private restrooms, however, they were set apart from the locker rooms. Student A was required to walk through long hallways, and lacked showers, electrical outlets and hair dryers. On occasion, Student A was locked out of the girls' locker room and was the only student forced to wear her PE uniform to class. She was forced to take a circuitous route to and from PE which caused tardiness problems. Although the District adjusted her class schedule, Student A testified that she felt "ostracized" and "set apart" from other students.

With regard to athletics, Student A participated in one of the school's teams. She was forced to change in a restroom adjacent to the locker room. On occasion, Student A entered the girls' athletics locker room to chat with her teammates, store her bag and change privately. Four girls and one parent complained and on each occasion Student A was reprimanded by coaches. Therefore, Student A believes she missed opportunities to bond with her teammates and has experienced disparaging treatment on social media by teammates and exclusion from social activities.

During the OCR investigation, after Student A requested a private area to change in the girls’ locker rooms, the District considered installing privacy curtains in a locker room space for use by any student, including Student A. During the week of October 26, 2015, the District installed five privacy curtains in the girls’ PE locker room. Student A testified that she would voluntarily use the privacy curtains as she maintains a sense of personal privacy. However, the District maintained that it would not provide Student A access to any locker room unless she is required to change behind the privacy curtains.

After all the time, effort, meetings, and money expended,… after everything the District had done, the narrow issue became whether the District could require Student A to do something she had voluntarily agreed to, and is voluntary for other students.… Curious. Why this line in the sand?

II.    OCR'S PROPOSED RESOLUTION

OCR pronounced that the District's installation and maintenance of privacy curtains would be a "significant step" towards achieving a nondiscriminatory alternative because providing sufficient privacy curtains could accommodate any student who wish to change while private protecting all students' rights. The girls wishing to protect their own bodies from being observed in a state of undress by other girls, including transgender girls, could change behind privacy curtains. Similarly, girls not wishing to observe others in a state of undress could also avail themselves of the privacy curtains. However, no student would be required to use the curtains.

OCR gave the District 30 days to implement this solution or face enforcement which could include administrative proceedings or a Justice Department Court action. More importantly, the District could lose some or all of its Title IX federal funding.

III.    LEGAL ANALYSIS

Some observers believe that the OCR letter is the Obama Education Department's legacy before the president leaves office. That may be true, but it is also true that OCR's findings are consistent. The findings are consistent with the letter of Title IX, prior California OCR decisions, and policy statements of the United States Justice Department and numerous other state and federal agencies. Township High School District 211 cannot be the least bit surprised by OCR's conclusions.

    A.    Title IX-A burden shifting analysis

Under Title IX, "[n]o person in the United State 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 (a). Title IX, at 34 CFR §106.31 (b) provides that a recipient may not, on the basis of sex, deny any person such aid, benefit or service; treated individual differently from another in determining whether the individual satisfies any requirement or condition for the provision of such aid,… subject any person to separate or different rules of behavior; or otherwise limit any person in the enjoyment of any right privilege or opportunity."

Thus, OCR examines whether there are any differences in treatment of similarly situated individuals. If differential treatment is established OCR then considers whether the recipient of federal funds has a legitimate, nondiscriminatory reason for the differential treatment and/or whether the reason provided was a pretext for discrimination. Clearly, the District denying locker room access to Student A and requiring only her to use privacy curtains is differential treatment. However, what is so remarkable about the OCR letter is the manner in which it challenges either the conventional wisdom, or the acceptable pabulum, in rejecting the District's justification for the differential treatment.

        1.    The District's argument

The District argued that providing privacy curtains and requiring Student A to use privacy curtains, "appropriately serves the dignity and privacy" of all students by balancing Student A's needs with the privacy concerns of other female students. The District predictably argued first, permitting Student A in the locker room would allow young women to be seen by a biological male. Second, the District argued that permitting Student A in the locker room would expose young women to a biologically male body. The District's argument mirrors cocktail party conversation throughout the country and one of the most basic premises in the debate over gender nonconforming students.

        2.    OCR’s investigation

Oddly enough, OCR required the District to provide facts in support of its privacy assertions. The only facts the District was able to provide in support of its concern were two private conversations between Student A, with a coach and a nurse, asking whether she presented a female appearance in her uniform. That's it! OCR opined that a student's question about how she looks bears no relationship to privacy concerns regarding nudity. Therefore, OCR determined that the claim was a pretext for discrimination.

    B.    Federal Precedent for the OCR letter

The negative findings and implications of the OCR letter may have been avoided through careful consideration of the recent federal response to transgender discrimination claims. Three California OCR investigations foretold the Illinois outcome. In 2011 an OCR investigation of the Tehachapi Unified School District found that transgender students were subject to gender-based harassment and discrimination. OCR ordered extensive remedial measures. That same year, a student in the Arcadia Unified School District filed a complaint under Title IX wanting access to facilities, including restrooms, locker rooms, and overnight field trips consistent with his gender identification. DOJ/OCR again dismissed the District's "generalized concerns about safety and privacy" because there were private changing areas, the students did not fully disrobe before changing for PE and there were no known instances of peer-on-peer harassment in the restrooms, locker rooms or elsewhere. The District entered into a voluntary resolution agreement and again, was forced to implement remedial measures. Most recently, in 2014 a complaint by a transgender student alleging harassment and discrimination against the Downey Unified School District also resulted in a resolution agreement. Essentially, OCR incorporated the same standards and reasoning as they did in the OCR letter.

Other federal agencies have followed suit. The Equal Employment Opportunity Commission and Department of Labor ("DOL") have interpreted Title VII prohibitions against sex and gender discrimination to bar employment discrimination based on gender identity. DOL mandates federal contractors allow transgender employees to use restroom and other facilities consistent with their gender identity. The Occupational Safety and Health Administration ("OSHA") mandates that transgender employees, “should have access to restrooms that correspond to their gender identity." OSHA recommends written policies that assure "prompt access to sanitary facilities” and providing options from which transgender employees may choose.

The United States' position is also supported by, of all organizations, the National Collegiate Athletic Association ("NCAA") whose recommendations parallel the OCR letter. A NCAA policy document recommends: "transgender student-athletes should be able to use locker room, shower, and toilet facilities in accordance with the student's gender identity.… When requested by a transgender student-athlete, schools should provide private, separate changing, showering, and toilet facilities for the student's use, but the transgender student should not be required to use separate facilities. It appears as though Township High School District 211 knew exactly what to expect.

IV.    CONCLUSIONS

As King Monkut, played by Yul Brenner in "The King and I" so aptly stated in his monologue exploring the conflict between tradition and progress "… it is a puzzlement." It is a puzzlement why the District treated Student A consistent with her gender identity in all respects except for locker room access. It is a puzzlement why the District went so far to accommodate Student A, yet invited a Title IX violation by requiring her to do something to which she voluntarily agreed. It is a puzzlement why the District apparently ignored federal policy and prior OCR decisions that were directly on point. It is a puzzlement to some that OCR rejected the District's proffered, "balancing of safety concerns" argument.

Perhaps it’s not so puzzling at all. To be fair, OCR decisions are not precedential. The OCR letter, and all such publications, include the sentence, "This is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such." State and federal case law concerning transgender rights is evolving and federal policy could change as early as January 2017. But is that the reason for the District’s decision? Let's be honest, the District was not engaged in a balancing of privacy concerns, but instead engaged in a political balancing. Much like King Mongkut, and the Topeka Kansas Board of Education in 1956, the District was caught in a maelstrom between the past and the future. The Superintendent and Board likely knew what the OCRs conclusions would be. However, they may have felt as though they had to placate ideological opposition. This is when democracy becomes hard work. We must understand that electoral politics matter. Who is in the White House as well as who is on the local school board directly impacts the restrooms and locker rooms used by our sons and daughters. That is why it matters.

V.    POSSIBLE STRATEGIES

In March 2014, we offered some practical suggestions to school districts concerning this issue. In December 2015, we are offering updated suggestions that are primarily derived from recent OCR resolutions and policy statements cited above:

• Draft, discuss, and incorporate Board Policies and Administrative Regulations specifying that discrimination on the basis of gender identity or gender identification is a form of sex discrimination and shall be treated accordingly;
• Draft, discuss and incorporate Board Policies and Administrative Regulations permitting access to sex-specific locker room and restroom facilities consistent with a student's gender identity and permitting access to additional private facilities at student's option;
• Train staff and students (according to grade propriety) concerning sensitivity to gender stereotypes, gender identity, and federal mandates including Title IX. This may include hiring a sensitivity or climate consultant;
• Ensure that facilities and accommodations for gender nonconforming students and employees are equal and balance everyone's privacy concerns. This may include inspecting campus facilities to determine whether modifications are necessary to enhance all students' privacy;
• Honor students request for alternative restroom or locker room facilities;
• Endeavor to treat all students in accordance with their gender identification in all respects;
• Draft, discuss, and incorporate discipline policies that specifically prohibit disciplining students for acting or appearing in a manner that does not conform with gender stereotypes;
• Develop protocols for staff to monitor locker rooms to prevent bullying, harassment, and privacy intrusions;
• Draft, discuss, and incorporate Board Policies and Administrative Regulations applicable to student participation in extracurricular activities and programs offered by the District. Pay special attention to ensure that gender nonconforming students are provided equal opportunity to participate;
• Monitor and document the effectiveness of the District's implementation of policies, procedures, training and protocols to prevent discrimination and differential treatment. These include, but are not limited to, climate surveys, parents surveys and disciplinary data; and
• Consult with counsel to determine the scope of District obligations as they relate to Federal agencies, State agencies and the courts.