A little less than a year ago, President Trump rescinded protections for transgender students that had allowed them to use bathrooms corresponding with their gender identity. Without the federal guidance, the United States Supreme Court vacated the case that it was set to hear addressing the rights of transgender students under Title IX, sending the case back to the 4th Circuit for further consideration. Most school administrators, eager to avoid being placed into the middle of the nation’s culture wars, hoped that they could safely avoid the thorny issue of Title IX’s protections for transgender students. However, the issue has continued to be litigated in the federal courts. As of January 10, 2018 the National School Boards Association identified at least 15 pending cases in which schools were involved in litigation over the rights of transgender students. Recent decisions in two of those pending cases show how carefully school administrators must track the law in order to avoid legal liability.
School Pays $800,000 Settlement to Transgender Student in Wisconsin
The school board in Kenosha, Wisconsin was sued by a student, Ash Whitaker, after it refused to permit his access to the boys' locker room and restrooms because he is a biological female who identifies as male. Whitaker successfully obtained a preliminary injunction that granted the facilities access he was seeking while his litigation was pending; the decision of the district court in favor of the student was affirmed by the Seventh Circuit Court of Appeals in one of the most important decisions to date on the rights of transgender students under Title IX and the 14th Amendment's Equal Protection Clause.
After the injunction was granted, the student graduated. The focus of the case changed from what the school was required to do for him going forward to whether the school was liable for money damages because of the discrimination that had already occurred.
On January 9, the Kenosha Board of Education voted to settle Witaker’s claim for $800,000 settlement voted on by the school board this week. The majority of the settlement -- $650,000 -- will reportedly cover Whitaker's attorneys' fees and costs.
The school emphasized in its public statements that this settlement was not an admission of liability for discrimination but a strategy to avoid the costs of ongoing litigation. However, that is not how advocates for the rights of transgender students will interpret this decision.
Parents’ Request for Injunction Preventing Accomodation of Transgender Students Denied in Illinois.
Administrators frequently ask if parents of gender-typical students can sue if they are concerned about their students being exposed to a transgender student in locker rooms or bathrooms. A school district in Illinois is defending exactly that sort of lawsuit after the school district had to enter into a resolution agreement with the Office for Civil Rights that permitted a transgender student to access the girls’ locker room.
A parent group called "Students and Parents for Privacy" sued the district, arguing that its agreement to permit a transgender girl to use the girls' locker room violated biologically female students' constitutional right to privacy and constituted Title IX sex discrimination (and we see the irony that both sides believe Title IX supports their decisions). The parent group asked the district court to enter a preliminary injunction prohibiting the school from giving the transgender student access to the girls’ locker room.
Last week, the district court denied the request for injunction. The district court wrote that the federal courts are bound to follow the position that "federal protections against sex discrimination are substantially broader than based on only on genitalia and chromosomes."
Moreover, the court reasoned, the association is not entitled to a preliminary injunction because they will suffer no irreparable harm by the fact that the high school will continue to operate under a policy that permits transgender students to use facilities according to their gender identity. Any student who fears their privacy would be impaired by encountering a transgender student in the bathroom or locker room simply has to access existing and available single-user facilities. That these facilities might be more remotely located did not constitute serious irreparable harm in the court's view. It is interesting that this is the reasoning the district court used, since the premise of the original OCR complaint that began all this trouble for the school was an argument that it would cause the transgender student irreparable injury if that student were forced to use a single-user facility rather than the girls’ locker room and girls’ bathroom.
Conclusion. School administrators, particularly Title IX Coordinators, must be aware of a wide variety of legal issues, including the those related to students with gender identity issues. In their annual Title IX webinar, attorneys from KSB will update school administrators on the legal status of transgender students, as well as other Title IX issues on the radar. That webinar is scheduled for Tuesday, January 30th from 9:00 a.m. CST to noon. School districts within participating ESUs can attend this webinar at no additional cost to their district; schools who are not members of participating ESUs can contact us directly to register for the session. Regardless of whether you plan to participate in the webinar on January 30th, you should contact Karen, Steve, Bobby or Tim or your school attorney if you have questions about students with gender identity issues or anything else related to Title IX.