Transgender issues have been in the news a great deal lately, particularly in the educational context. In Illinois, a group of parents has brought a lawsuit challenging the District’s decision to allow a transgendered male student access to the girl’s locker room.
In a lawsuit filed in federal court Wednesday, the group contends that the actions of the Department of Education and Palatine-based Township High School District 211 “trample students’ privacy” rights and create an “intimidating and hostile environment” for students who share the locker rooms and restrooms with the transgender student.
“Students have an expectation of privacy in restrooms and locker rooms, and that expectation is violated when a school puts the opposite-sex student in those kinds of private and intimate facilities,” said Jeremy Tedesco, attorney with Alliance Defending Freedom, a religious legal advocacy group representing the plaintiffs”.
This lawsuit raises the important question of whether the Departments of Justice and Education have overreached by importing “gender identity” into Title IX’s definition of “sex”. At least one Appeals Court Judge thinks so.
In a dissenting opinion in G. G. v. Gloucester County School Board, Fourth Circuit Judge Paul Niemeyer expressed his opinion that they had. In that case, G.G., a transgendered female who identified as a boy, had been denied use of the boy’s restroom and directed to use the several unisex, single-use restrooms in the school. The trial court held that G.G. did not have a claim for sex discrimination under Title IX. The Fourth Circuit panel overruled the trial court’s dismissal. In his dissent, Judge Niemeyer pointed out that Title IX allows for separate living facilities, restrooms, locker rooms, and shower facilities “on the basis of sex,” not gender identity, so long as the facilities are “comparable”. He then took the majority to task for ignoring this statutory language and rejecting the School District’s provision of sex- and gender-identity-neutral bathrooms for use by all students.
“This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect. More particularly, it also misconstrues the clear language of Title IX and its regulations. And finally, it reaches an unworkable and illogical result. The recent Office for Civil Rights letter, moreover, which is not law but which is the only authority on which the majority relies, states more than the majority acknowledges. In the sentence following the sentence on which the majority relies, the letter states that, to accommodate transgender students, schools are encouraged “to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities [as permitted by Title IX’s regulations].” This appears to approve the course that G.G.’s school followed when it created unisex restrooms in addition to the boys’ and girls’ restrooms it already had. Title IX and its implementing regulations are not ambiguous. In recognition of physiological privacy and safety concerns, they allow schools to provide “separate living facilities for the different sexes,” 20 U.S.C. § 1686, provided that the facilities are “proportionate” and “comparable,” 34 C.F.R. § 106.32(b), and to provide “separate toilet, locker room, and shower facilities on the basis of sex,” again provided that the facilities are “comparable,” 34 C.F.R. § 106.33. Because the school’s policy that G.G. challenges in this action comports with Title IX and its regulations, I would affirm the district court’s dismissal of G.G.’s Title IX claim”.
Certainly, this issue will continue to be litigated. As Judge Niemeyer’s dissent points out, there are competing interests for privacy and safety when “sex” and “gender identity” are not synonymous, particularly when children are involved. And when the middle road is rejected out of hand, the result serves no one.
Find out what the Chicago Tribune has to say about the issue here:
Get the court documents here: