Monday, January 25, 2016

Transgender discrimination complaint resolved

The transgender student whose demand to use the girls’ locker room at a suburban Illinois high school touched off a national discussion on privacy rights and equity was granted access to the locker room on Jan. 15. Under an agreement adopted by the school district in December, a Cook County school board granted the transgender student’s request, thus ending a discrimination complaint.

The student’s complaint, filed with the U.S. Department of Education’s Office for Civil Rights (OCR), had triggered an investigation and an unprecedented decision in November that claimed the district had violated Title IX, the federal law that bans discrimination on the basis of sex.

The OCR is the agency responsible for enforcing civil rights laws in schools. The federal Title IX law, which took effect in 1972, protects students from discrimination based on gender in education programs or activities that receive federal assistance, including discrimination against transgender students.

The district had risked losing millions of dollars in federal support, and faced a potential lawsuit had it failed to reach a resolution. But the accommodations offered by the district have put such concerns to rest. In its agreement with the OCR, the district also made a concession to meet concerns about any potential invasion of student privacy, according to the principal at the high school.

“The physical education locker room provides accommodating means to ensure privacy for any student when changing clothes,” noted the principal in an email to parents this month.

The student, who was born male but identified as female, has gone through a social transition and now uses a female name and female pronouns. The student had asked to use all the facilities for females at the high school. The district initially denied the use of the girls’ locker room.

After a protracted discussion with the OCR, however, the district agreed to allow the use of the locker room. But the district said it would require the student to change behind a privacy screen installed by the school.

The OCR responded in a letter dated Nov. 2 that such changes were not enough, and such an accommodation would still represent a violation of Title IX.

But ultimately school officials in the suburban district were permitted to replace privacy curtains with stalls equipped with doors, hooks, and benches. The stalls built by district maintenance staff are like the typical changing areas at department stores, a school district spokesman told the Chicago Tribune, in a story dated Jan. 15.

Both the girls’ and boys’ PE locker rooms now have five privacy stalls each for use by any student. Further, the district’s cost for the renovation has been quite low, according to the same source.

Ed Yohnka, a spokesman for the American Civil Liberties Union of Illinois, which represented the student’s complaint, said the student was looking forward to being able to use the locker room. Yohnka said the district worked diligently with the student’s family to implement the settlement agreement.

“They hope that this agreement is the beginning of a process which will result in all students — transgender and cisgender [meaning not transgender] — being respected and honored…”

Other school districts are eyeing the need to make similar, relatively simple accommodations. But for such students, identifying as transgender and changing the facilities they will use may not be a simple switch.

“There is a process they must go through to demonstrate that change,” Bloomington area Regional School Superintendent Mark Jontry told the Bloomington Pantagraph for a story published on Dec. 20.

Students must also show a new or changed birth certificate or a medical diagnosis of gender dysphoria, meaning dissatisfaction or unease with their gender, Jontry told the newspaper. In addition, the parents and student need to talk over accommodations with the school district’s attorney, coming up with ideas that would be reviewed by the federal OCR.

“We are seeing now more and more requests from students to use the locker room of the gender they identify with,” noted school attorney Stephanie Jones, of Hodges, Loizzi, Eisenhammer, Rodick & Kohn LLP. “Students are all over the map as to whether they want to use a gender-neutral facility, such as a nurse’s bathroom or a school administrator’s bathroom,” Jones added. But if a student wants to use the gender-neutral facility and everyone is happy with that accommodation, there is no impediment in the law to that, she said.

Jontry agrees that each case is unique. “Hopefully, the student, parents, and school would come to an agreement on what types of accommodations to make. It all comes down to what accommodations will work best for the student and district, while taking all other students’ well-being into account,” Jontry told the Bloomington Pantagraph for a story published on Dec. 20.

Jontry noted that McLean County Unit District 5 in Normal has adopted an IASB sample administrative procedure, specific to accommodating the needs of transgender or gender-nonconforming students (7:10-AP). The district’s procedure prohibits gender-based discrimination and bullying, and it adds that each request from a transgender student must be managed individually with help from the school district’s attorney.

School attorneys can help districts work with transgender students on a solution that makes them most comfortable. It might mean changing in the locker room that matches the student’s gender and having private areas available for those who aren’t comfortable changing in front of the other students, or using a gender-neutral facility if the student prefers.

The sample administrative procedure Jontry referred to is part of an IASB fee-based service that offers policy and procedure information and updating. It has two components: the Policy Reference Manual, an encyclopedia of sample policies and procedures, legally referenced and footnoted; and periodic update issues, known as PRESS. Information about these services is available here.