Federal Judge Smacks Down Attempt to Discriminate Against Transgender Student

By Zack Ford, ThinkProgress

19 October 16

“High school students do not have a fundamental constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs.”

here have been many fights over transgender rights across the country, but the showdown in Illinois’ District 211 has been particularly ugly. After “Student A” successfully fought the school for access to the same locker room other girls used, a group of anonymous students turned around and sued, claiming that her access caused them “emotional distress.” A federal judge was not impressed by their claims.

On Tuesday, United States Magistrate Judge Jeffrey T. Gilbert recommended against granting these students a preliminary injunction blocking Student A and other trans students from the facilities. “High school students do not have a fundamental constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs,” he explained.

A magistrate judge’s recommendation must be adopted by a district judge before it has the force of law, so Gilbert’s recommendation must still clear that hurdle.

Throughout the recommendation, Gilbert laid out in detail why these students are not harmed by sharing a space with a transgender classmate. Indeed, they are not even required to share a space with her, as there are alternative restrooms that they may use. If they’re uncomfortable, they can voluntarily use a different facility or make use of a privacy stall without forcing transgender students to be ostracized to other spaces.

Though the plaintiffs — who insistently misgendered Student A throughout their briefs — would disagree, Gilbert agreed that “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. So, to frame the constitutional question in the sense of sex assigned at birth while ignoring gender identity frames it too narrowly for the constitutional analysis.”

A decision issued just last week from the United States Court of Appeals for the Seventh Circuit was instrumental in helping him arrive at that conclusion. Since 1984, there has been a circuit precedent that the term “sex” be defined narrowly according to “tradition” and biology. But last week, in a case about discrimination on the basis of sexual orientation, the appellate court vacated a ruling based on that precedent, opening the door for judges in the circuit to reconsider how narrowly protections should be defined. For Gilbert, this made it easy for him to agree with the federal government’s interpretation of Title IX’s “sex” protections that allowed Student A access to the locker rooms in the first place.

He also made a point that has not come up in other cases about student facility access. Title IX, he explained, permits schools to provide facilities that are divided by gender, but it does not require them to do so. As it stands, District 211’s policy is to segregate the genders and to respect transgender people’s identities; as Gilbert described it, “Cisgender boys use the boys’ restrooms with transgender boys just like cisgender girls use the girls’ restrooms with transgender girls.” But even if the facilities were completely gender-neutral, they wouldn’t violate Title IX’s sex protections.

The student plaintiffs’ claim that a transgender student would violate their sense of privacy and safety was not convincing. “There is absolutely no evidence in this record that allowing transgender high school students to use restrooms or locker rooms consistent with their gender identity increases the risk of sexual assault,” Gilbert pointed out in a footnote. He also highlighted that the military now “allows transgender personnel to serve openly and fully integrated in all military services” and the NCAA “includes transgender student-athletes in collegiate sports consistent with their gender identity.”

“Neither the Restroom Policy nor the Locker Room Agreement shocks the conscience,” he wrote. Given the accommodations available, “put simply, this case does not involve any forced or involuntary exposure of a student’s body to or by a transgender person assigned a different sex at birth.”

Though the case will still proceed, it’s a major loss for the Alliance Defending Freedom (ADF), an anti-LGBT legal organization that is pursuing numerous cases across the country to challenge LGBT nondiscrimination protections or actually force discrimination upon transgender people. ADF Senior Counsel Gary McCaleb bemoaned in a statement, “Young students should be not be forced into an intimate setting like a locker room with someone of the opposite sex.”

Meanwhile, the ACLU, which represents Student A and two other rising transgender students at the school, celebrated the outcome. John A. Knight, Director of the ACLU of illinois’ LGBT Project, said in a statement, “Barring Student A and other transgender students from the restrooms and locker rooms that match their gender challenges their basic identity and humanity, suggests that they should be ashamed of who they are, and puts them at serious of long-term emotional and psychological injury. We are pleased that Judge Gilbert rejected specious arguments about privacy and protected the interests of all the students.”