A federal court in Nevada recently dismissed a Title IX case brought by the parents of a preoperative male-to-female transgender student (referred to in the decision as "Mary Doe") that challenged the school's decision that would have prohibited her from using the girls' restroom. Apparently (the decision does not provide a detailed factual account of what happened) the plaintiffs considered enrolling their daughter at Green Valley High School near Las Vegas, Nevada, but chose not to after the principal informed them that Mary would not be allowed to use the girls' restroom. Instead, the private bathroom in the nurse's office would be available instead.
The court found numerous weaknesses in the plaintiffs' case. First, it said that because the plaintiffs' did not enroll their daughter in GVHS, no discrimination or injury actually occurred. Second, it concluded that plaintiffs could not bring an Equal Protection claim against the school district because Title IX provides the exclusive remedy for such claims (similar to another decision we blogged about recently). Third, with respect to the plaintiff's Title IX claim, the court expressed doubt that Title IX covers bathrooms because the statute's scope is limited to educational programs. And fourth, even if Title IX does apply to bathrooms, the court determined that discrimination did not occur because a bathroom (in the nurse's room) would have been available to Mary Doe had she enrolled.
I have a big problem with the court's suggestion that Title IX does not apply to school restrooms. Clearly bathrooms on school grounds are part of an educational program. The court cites a Ninth Circuit case suggesting that it's appropriate for courts to make an "actual determination as to whether the relevant portions of a recipient's program is educational in nature." But that was a case about Title IX's application to a prison system's vocational education program. The court there was suggesting, appropriately, that Title IX, an education statute, doesn't govern the entire prison -- just the vocational educational program. To suggest that school bathrooms aren't covered by Title IX because there's not "education" going on in there misses the point of the distinction that the Ninth Circuit was making. It is also ridiculously dismissive of common sense. If a school (or, say, a college engineering building) had no female bathrooms, it would clearly be understood as an indirect exclusion of women from the educational program being conducted in that building, because people need bathroom access so that they can physically be where the education is going on.
Moreover, in determining that the school district did not discriminate against Mary Doe because it made another bathroom available to her, the court fails to consider the possibility that discrimination against transgender individuals is per se discrimination on the basis of sex, and thus prohibited under Title IX. Under such a theory, one could view the exclusion of the plaintiffs' daughter from the girls' bathroom as failure to treat her similarly to all other girls for the sole reason that unlike all the girls, she was born into a male body. As for the nurse's room alternative, the court does not address, nor seem to understand, that this is socially isolating and an affront to Mary Doe's dignity, which as a result is potentially tantamount to an outright exclusion from school.
Most likely the court, and the principal at GVHS, were concerned about the potential that Mary's presence in the girls' bathroom would be disruptive due to her male anatomy. But to the extent this concern is motivated by assumptions, stereotypes, and fear, it is not a valid concern. If the student in question has good behavior generally, why should the school assume that she will be aggressive or harassing or disrespectful in the bathroom? Even if the principal's concern was that the girls will be uncomfortable by the mere presence, however innocent, of a girl with male anatomy (which, I might add, would not be visible to anyone outside whichever individual bathroom stall Mary Doe elects to use), it does not seem that the principal even considered whether these concerns could be mitigated with education about tolerance and acceptance of those who are different before validating them with preemptive exclusion.
Decision is: Doe v. Clark County Sch. Dist., 2008 WL 4372872 (D. Nev. Sept. 17, 2008).