Parents May Continue to Litigate Title IX Challenge to High School's Transgender Inclusive Locker Room Policy

A district court in Illinois issued a ruling yesterday on a school district's motion to dismiss the various claims in a lawsuit filed by parents challenging its policy of permitting transgender students to use facilities that correspond to their gender identities.  The parents claim that their daughters have been upset and humiliated by having to share girls' locker rooms with other female students who have male anatomy. One parent alleges that the school denied her request to allow her daughter to access a private changing facility, and another that the school failed to investigate or remediate a situation where her daughter was exposed to another student's penis.

The court dismissed plaintiffs' claims that the school's transgender-inclusive facilities violate their daughters' constitutional rights to due process (bodily integrity) and religious freedom, as well as the parents' constitutional rights to autonomy in raising their children. But the court allowed the plaintiffs to continue to litigate their claim that the school district has violated their daughters' rights under Title IX. The court agreed that the plaintiffs had adequately alleged sexual harassment, of which the school had notice and responded to with deliberate indifference. The court noted that the Seventh Circuit has allowed harassment claims under Title VI and Title VII to survive motions to dismiss that minimally plead the elements of a harassment claim. These cases establish the pleading standard for Title IX harassment cases as well, and the details in the plaintiffs' complaint surpasses this low bar.

This ruling is the first of its kind in a transgender bathroom case, though importantly, the court was careful to point out its limited scope and preliminary nature --  noting that whether the plaintiffs "can ultimately prevail on this claim is a question for another day." I also think it's premature to worry that this case will somehow dismantle the trend in favor Title IX's protection of transgender students' rights by creating an inherent conflict between transgender students' rights and the rights of other students to be free of a sexual harassment. One possible outcome is that once the plaintiffs are required to supply evidence in support of their claims, they will not be able to establish as a general matter that the prospect of encountering a transgender student in a locker room is harassment that is severe or pervasive and objectively offensive.  It's also possible that the parents could win on very narrow grounds that still respects the school's policy of inclusion, but finds it marginally at fault for not doing more to accommodate all students' right to privacy, such as by making locker room alternatives available to anyone who is not comfortable in communal changing space. Either of these two possibilities seem much more likely than a court order enjoining the school from permitting transgender students to use the facilities that correspond to their gender identity, which even after this preliminary ruling in the parents' favor, still seems unlikely and far-fetched to me.

Decision: Students and Parents for Privacy v. School Directors of Township High School District 211, No. 16C 4945 (N.D. Ill. Mar. 29, 2019).