OCR: Transgender Student Entitled to Use Girls’ Locker Room

The U.S. Department of Education’s Office for Civil Rights recently found that an Illinois school district violated Title IX when it prohibited a transgender high school student from using the girls’ locker room. Twp High Sch Dist 211, OCR Case No. 05-14-1055 (November 2, 2015).

The student, who was born male, identifies as a female and has transitioned to living full-time as a fe­male. When the student began high school, the school generally honored the student’s request to be treated as a female. The school, however, denied the student’s request to access the girls’ locker room and change in a stall within the locker room.  The school believed that the student’s request was not reasonable because there were too few stalls and too many students.

The school proposed several alternative options to the student, which included:

  • access to a locked, private, single-occupancy restroom for gym class, located approximately 75 feet down the hall from the gymnasium en­trance, which would need to be unlocked by a staff member;
  • access to the restroom adjacent to the girls’ locker room with a door separating the two rooms;
  • for swimming class, access to a restroom around the corner from the swimming locker room, which contained a shower, restroom stalls, a sink, a mirror, and a locker, but lacked the traditional showers, electrical outlets, or hair dryers found in the girls’ swimming locker room; and
  • for athletics, access to the same restroom available to the student for gym class.

In October 2015, the school installed five privacy curtains in one girls’ locker room. The school informed OCR that it was willing to allow the student to access the girls’ locker room, provided she changed behind the curtains. To date, however, the school has not al­lowed the student to access any girls’ locker room. The school did not install privacy curtains in two other locker rooms to which the student was denied access.

OCR determined that while the school generally treated the student consistent with her gender iden­tity, it violated Title IX of the Education Amendments of 1972, which prohibits sex-based discrimination in all federally-funded educational institutions. While Title IX permits a school to provide separate toilets, locker rooms, and shower facilities on the basis of sex, “such facilities for students of one sex shall be comparable to such facilities provided for students of the other sex.” OCR found that this language applies to transgender students and that any separate facilities for transgender students had to be comparable to the facilities provided for other students. Thus, OCR deter­mined that the school’s alternative options for locker room facilities for the student were not comparable and, therefore, the school violated Title IX.

OCR noted, however, that the district’s “installation and maintenance of privacy curtains in one locker room go a long distance toward achieving such a nondiscriminatory alternative because provid­ing sufficient privacy curtain access to accommodate any students who wish to be assured of privacy while changing would allow for protection of all students’ rights.” OCR’s investigation letter indicates that in­stalling curtains in all locker rooms and allowing the transgender student access to all locker rooms may be an acceptable solution and could adequately balance the rights of all students. However, OCR emphasized that allowing entry into the girls’ locker rooms is necessary for Title IX compliance. The district and OCR have until December 2, 2015 to reach a resolution of this matter.

As noted in last month’s issue of School Law Notes, the law regarding transgender students is still evolv­ing. A state court in Maine has held that under Maine law a transgender elementary student must be permit­ted to use the restroom consistent with her gender identity. The Maine court’s decision, however, was based on a specific state law, which differs from Michigan law. To the contrary, two federal district courts outside of Michigan have held that Title IX’s provision allowing schools to provide separate bath­rooms, locker rooms, and shower facilities on the basis of sex allows such a distinction to be based on the sex assigned at birth. Both decisions have been appealed.

While the law surrounding transgender students continues to evolve, school officials should evaluate requests from transgender students on a case-by-case basis and strive for full inclusion. Installation of pri­vacy curtains in all locker rooms may be a reasonable, cost-effective way to ensure all students are fully in­cluded. In the case above, however, such a solution was acceptable to OCR only because the student indi­cated a desire to change behind a curtain. OCR generally takes the position that the students with pri­vacy concerns, not the transgender student, must change behind a curtain.