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​Feds Step Up Enforcement of Transgender Student Rights

Higher Education Client Alert Michael Aldana, Lindsey W. Davis

In April 2014, the U.S. Department of Education (ED) published its Questions and Answers on Title IX and Sexual Violence, announcing its position that Title IX of the Education Amendments of 1972 (Title IX) prohibited discrimination against transgender students. Since then, the federal government as a whole, and the ED’s Office of Civil Rights (OCR) in particular, has aggressively enforced the rights of transgender students.

Most recently, on November 2, 2015, the OCR found that Palatine, Ill. Township High School District 211 violated Title IX when it prohibited a transgender student who identifies as female from utilizing female locker rooms at the school. The student—who has identified as female from a young age—presents a female appearance and takes an ongoing course of hormone therapy. Although the school had long referred to the student by her female name and allowed her to access female restroom facilities and play on female sports teams, it prohibited her from having unrestricted access to its female locker rooms. Citing in part the “privacy concerns of all students,” the school indicated that it would allow the student to utilize the female locker rooms only if she, and she alone, agreed to change clothing and shower behind a privacy curtain.

After the student filed a discrimination complaint, OCR concluded, in a 14-page letter to the school district, that the school’s policy of prohibiting the student unrestricted access to the female locker rooms violated Title IX. The OCR stated that as a result of the school’s policy, the student “not only received an unequal opportunity to benefit from the District’s educational program, but has also experienced an ongoing sense of isolation and ostracism.” While OCR recognized the school’s need to formulate, interpret, and apply rules in a manner that respects the legal rights of students, it found that requiring the student to change behind a privacy curtain went too far. OCR advised that installing a sufficient number of privacy curtains in one locker room and allowing all female students to voluntarily use those curtains would afford sufficient privacy while protecting the rights of all students.

The OCR’s initial determination aligns with the Obama Administration’s overarching enforcement strategy in the area of transgender rights. Indeed, the decision comes shortly after the United States Department of Justice (DOJ) filed a brief with the Fourth Circuit Court of Appeals in support of a transgender high school student’s efforts to pursue access to his school’s male restrooms. In its brief, the DOJ concluded that “there is a strong public interest in requiring [the school district] to treat [the student], a transgender male, like all other male students, including allowing him to use the male restrooms at [the] high school.” While the federal government’s latest enforcement efforts have focused on high schools, it will apply its interpretations of Title IX to colleges and universities.

Amid the federal government’s amplified enforcement efforts, states are weighing in to assert contrary positions. In Wisconsin, a proposed bill would require public schools to restrict access to restrooms and locker rooms based on the student’s gender at birth. The proposed bill mirrors legislation proposed, but not passed, in several other states including Kentucky, Minnesota, Nevada, and Texas.

Given these latest developments surrounding the rights of transgender students, it is increasingly imperative that colleges and universities review their policies and practices relating to transgender students to ensure compliance with Title IX and other applicable laws. For more information regarding Title IX and transgender discrimination, please contact Michael Aldana at (414) 277-5151/michael.aldana@quarles.com, Lindsey Davis at (414) 277-3073/lindsey.davis@quarles.com, or your Quarles & Brady attorney.