“…federal protections against sex discrimination are substantially broader than based only on genitalia or chromosome.”

You can get sued if you refuse to accommodate a transgender student in the way the student wants to be accommodated. You can also get sued if you do accommodate the student. That’s what happened in Palatine, Illinois.  A group of parents and students, supported by the Alliance Defending Freedom, sued the school district because the school had been allowing a student born male to use the girls’ restroom. They argued that accommodating the transgender student infringed on the privacy rights of other students.

The federal court has rejected that argument.  The court relied on Supreme Court precedent (Price Waterhouse v. Hopkins, 1989) and 7th Circuit precedent (Hively v. Ivy Tech Community College of Indiana, 2017; and Whitaker v. Kenosha USD No. 1 Board of Education, 2017) that establish that discrimination based on sex is not limited to “genitalia or chromosome.”  The Price Waterhouse case established that a woman who is denied a promotion because she was insufficiently “ladylike” was the victim of sex discrimination.  The Hively case held that discrimination based on sexual orientation was a form of sex discrimination. And the Whitaker case extended that reasoning to transgender individuals.

The court noted also that there were adequate privacy protections available in the bathrooms, such as private stalls. The court also pointed out that the transgender student had been using the girls’ bathroom for three years prior to the lawsuit:

Notably, District 211’s practice of allowing transgender students to use the restrooms of the gender with which they identify was implemented nearly three years before the filing of this action.  As the Magistrate Judge observed, either Student Plaintiffs did not notice that transgender students were using restrooms consistent with their gender identity, or they knew and tolerated it for several years.  The passage of time therefore further undermines Plaintiffs’ claim of irreparable harm.

Litigation over this issue will continue until we get a SCOTUS decision on it.  The trend seems to be in favor of the transgender student. Certainly that’s the case in the 7th Circuit, where this case originated. We have no binding 5th Circuit ruling on the issue, so educators should continue to seek legal counsel.  And remember: the main thing is to provide a safe environment for all kids so that they are receptive and ready to learn.

The case of Students and Parents for Privacy v. U.S. Department of Education was decided by the federal court for the Northern District of Illinois on December 29, 2017.  We found it at 2017 WL 6629520.