In an opinion issued yesterday, U.S. District Court Magistrate Judge Jeffrey Gilbert decided that Township High School District 211 “balanced the interests of all its students when it decided to permit transgender students to use restrooms consistent with their gender identity and to allow [one transgender student] to use the girls’ locker rooms at her high school.” The recommended decision comes in a lawsuit brought by a group of parents who are seeking an injunction to prohibit transgender students’ access to bathrooms and locker rooms consistent with their gender identity.

Specifically, the parents challenged District 211’s practice of allowing transgender students bathroom access and its agreement with the U.S. Department of Education Officer for Civil Rights (OCR) allowing locker room access to a transgender student upon the student’s representation that a private changing station would be used for changing clothes.

The parent group claimed that OCR’s agreement with the District allowing locker room access was unenforceable. The attorneys representing the parent group have brought cases across the country to challenge OCR’s position that schools must grant facility access to students consistent with gender identity. They dispute OCR’s position that gender identity is encompassed in Title IX of the federal Civil Rights Act, which prohibits sex discrimination by educational institutions. The parent group also claimed that continuing to allow transgender students to access these spaces would violate other students’ constitutional right to privacy and constitute sexual harassment. 

Magistrate Judge Gilbert disagreed with the parent group’s position for a number of reasons. First, Magistrate Judge Gilbert found that the law concerning the interpretation of the word “sex” may be in flux. He cited a recent appellate court case (Hively v. Ivy Tech Community College) in which the full Seventh Circuit Court of Appeals will consider the definition of “sex” discrimination in an employment case. Magistrate Judge Gilbert opined that “the better reasoned recent decisions hold that the term ‘sex’ in Title IX can be interpreted to encompass gender identity.” In light of the uncertainty in the law, Magistrate Judge Gilbert recommended against enjoining District 211’s agreement with OCR to provide locker room access consistent with a transgender student’s gender identity.

Second, Magistrate Gilbert found that high school students do not have a constitutional right to not share restrooms or locker rooms with transgender students. Importantly, the Court explained that “sex assigned at birth is not the only data point relevant to the question of whether the Constitution precludes a school from choosing to allow transgender students to use restrooms or locker rooms consistent with their gender identity. . . a transgender person’s gender identity is an important factor to be considered in determining whether his or her needs, as well as those of cisgender people, can be accommodated in the course of allocating or regulating the use of restrooms and locker rooms.”

Also important to the decision was that District 211 did not compel any student to use a restroom or locker room with a transgender student. District 211 offered all students privacy options and notified all parents that students may request use of alternative facilities. The Court found that any risk of unwanted exposure was substantially reduced by these privacy protections.

Magistrate Judge Gilbert went on to find that the District’s decision to allow transgender students access to sex-separated facilities did not create a legally hostile environment against cisgender students. The Court was not persuaded that there is “anything objectively offensive about a transgender student being present in a restroom or [a transgender student] being present in a locker room when at no time is his or her unclothed body exposed to any student… and the risk of that happening is substantially mitigated by the various privacy protection in place by District 211.”

Magistrate Judge Gilbert’s decision is a recommendation that may be challenged and, ultimately, appealed.  However, as the first decision from a federal court in Illinois on this important issue, the decision is significant and should be considered by school districts planning supports for transgender students. Franczek Radelet attorneys Sally Scott, Michael Warner, and Jennifer Smith are representing District 211 in the lawsuit.