Court Rejects Parents' Arguments That Privacy Requires Transgender Students' Exclusion from Bathrooms

Township High School District Number 211 in Palatine, Illinois, is again in the news for recent developments in its legal struggle over transgender-inclusive locker rooms and bathrooms. In 2015, the Department of Education found that the school district's policy of excluding a transgender girl from the girls' locker room violated Title IX, a precedent-setting decision at the time. In response, the school district had to enter into a resolution agreement that permitted the student's access to the locker room.

Subsequently, the school district came under fire again, this time, in the form of a lawsuit filed by an association called "Students and Parents for Privacy." The association sued the district, arguing that its agreement to permit a transgender girl to use the girls' locker room violated cisgender-female students' constitutional right to privacy and constituted sex discrimination against them, in violation of Title IX. The association also moved for a preliminary injunction that would require the school to bar transgender students from gender-appropriate facilities while the litigation was pending. After a magistrate judge recommended that the district court deny this motion, the association tried to get the district court to reject the magistrate's recommendation, but last week the district court decided that it to would deny the association's preliminary injunction.  

In particular, the district court rejected the association's argument that the magistrate's opinion conflicted with old case law in the Seventh Circuit (a jurisdiction that includes Illinois) that narrowly construes the meaning of sex in cases applying the sex-discrimination provisions in Title VII to transgender plaintiffs. The district court points out that very recent Seventh Circuit decisions (that we have blogged about here and here) make clear that the appellate court no longer embraces the same narrow view. Instead, the district court is bound to follow the appellate court's updated 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.