Township High School District 211, a public school district of the Chicago suburbs, has been the epicenter of multiple controversies surrounding its policies toward transgender student locker room access. Since January 2020, the district has implemented a policy of unrestricted locker room access corresponding to the gender identity of each student.
Student A Background
On June 23, 1972, Richard Nixon signed the Education Amendments of 1972 into law, regarding the federal government's policies toward institutions of higher education. Title IX of the act states:
Congress gave the executive branch wide purview in enforcing Title IX.20 U.S.C. §§ 1682 While Title IX explicitly prohibits sex discrimination in educational programs and activities (including school athletic programs) which receive federal funding, it did not enumerate specific ways in which this was to be implemented.20 U.S.C. §§ 1681-1688 The United States Department of Education has therefore historically created sub-regulatory guidance to enforce Title IX. These rules must be followed by all educational institutions receiving federal dollars, including 16,500 school districts and 7,000 colleges, universities, and other post-secondary schools.
The Office for Civil Rights, which is responsible for implementing Title IX within the department, issued several "Dear Colleague" letters under the Obama administration detailing public policy regarding LGBT students. In 2010, OCR released one such letter stating that while Title IX did not prohibit LGBT-based discrimination, it did prohibit discrimination toward LGBT students based wholly or in-part on sex. A 2014 document from OCR later stated that Title IX covered gender identity and gender nonconformity based discrimination.U.S. Dept. of Education, Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, April 29, 2014
OCR investigation In December 2013, a student from William Fremd High School, a part of District 211, filed a complaint under Title IX with the Office for Civil Rights. The student, named only as "Student A", was assigned male at birth but identified as female at an early age. From the filing of the complaint onward, she was represented by the ACLU of Illinois. Student A's complaint alleged that the district had discriminated against her because she was denied use of the girls' locker room and was required to dress in a separate, private bathroom. District 211 said that in making their decision to deny access, they weighed Student A's rights with the right of other students to privacy. The district determined that they could not allow Student A access because it would result in students of opposite biological sex viewing each other's bodies. OCR found these concerns to be "unavailing", telling the district in July 2015 that it had violated Title IX by discriminating against Student A on the basis of sex. This marked the first time that OCR had found a school district to be found in violation of civil rights law on the basis of transgender issues. Neither OCR nor Student A alleged that there was a hostile environment or that the district's discrimination went beyond locker room access. In October 2015, the district installed privacy curtains in the girls' locker room and stated that it would not allow Student A to change in the locker room unless she was required to use the privacy curtains. Student A said she would use the curtains if available. OCR disagreed with the district's stated policy of requiring Student A to change behind the curtains because "those female students wishing to protect their own private bodies from exposure... could change behind a privacy curtain". Allowing Student A access to the girls' locker room with the requirement that she change in private was not an acceptable solution to OCR.
OCR and District 211 engaged in negotiations nine times to resolve the Title IX violation. On October 12, 2015, the district stated that it would not resolve the issue voluntarily following a collective decision by the school board and district administration. On November 2, 2015, OCR sent a letter to District 211 superintendent Dr. Daniel Cates to inform him that if an agreement was not reached in 30 days, it would enforce Title IX. Enforcement could have jeopardized the yearly $6 million in federal funding which the district received at the time; its total budget was then $240 million. Superintendent Cates viewed the decision as an overreach.
District 211's response On December 2–3, 2015, the last days before OCR would enforce Title IX, the District 211 Board of Education held a meeting to determine what action should be taken. In the preceding month, the district had negotiated with OCR and reached a resolution agreement approved by OCR but requiring a vote by the school board. The agreement was summarized as follows:
The board meeting included a two-hour period for public comment. Parents and students addressed the board with their views regarding Student A's use of the locker room. A majority of comments were against the settlement.
After a three-hour closed-door meeting, the school board voted 5–2 to accept the agreement with OCR. Mike Scharringhausen, Anna Klimkowicz, Robert LeFevre, Will Hinshaw, and Mucia Burke voted for the resolution. Lauanna Recker and Peter Dombrowski voted against.
Disagreement over the agreement The agreement between District 211 and OCR included language which stated that the district would allow Student A girls' locker room access "based on Student A’s representation that she will change in private changing stations". The agreement did not explicitly state that Student A would be required to change in a privacy stall. The district would also have to take a number of other measures as part of the resolution, including providing a "reasonable alternative" to any student who requested additional privacy. District officials had said that the terms of the agreement with OCR only applied to Student A. On December 3, after the board voted to accept the resolution, Catherine Lhamon of OCR said that it was "facially inconsistent with the terms of the agreement" for the district to adopt this view, adding that OCR would continue to enforce Title IX in any case where the district refused locker room access. In addition, Lhamon said that the agreement allowed Student A unrestricted access to the locker room. On December 4, Superintendent Cates released a statement in response to Lhamon which reiterated the district's view that the agreement only applied to Student A. In that statement, Cates also said that if Student A's actions did not match her representation that she would change in private, the district would revoke her girls' locker room access. A statement later released by the ACLU spokesman Ed Yohnka agreed with OCR's view that the agreement did not require Student A to change in private. Yohnka also said that it would seem unreasonable for OCR not to defend any other transgender student who should request locker room access consistent with their gender identity. On December 7, the district received a letter from Lhamon which stated that the agreement provisions specific to locker room access did not apply district-wide. Furthermore, Lhamon said that the district agreeing to allow Student A access to the girl's locker room was "based on the student's representation that she will change in private changing stations"—language very similar to the terminology already at issue in the agreement. The Chicago Tribune noted that both OCR and District 211 seemed to agree that the provisions regarding locker room access applied in one case, while the other provisions of the resolution applied district-wide.
The Board of Education held another meeting on December 7, four days after they had accepted the resolution, to reassess the district's standing relative to the agreement. As before, the district had a period for public comment, which was significantly more supportive of Student A's case than the previous one. After a lengthy closed-door meeting, the board announced that it would not overturn the agreement.
Policy changes On May 13, 2016, the Department of Education and Department of Justice issued a "Dear Colleague" letter which updated the federal government's official view on Title IX. In general, the letter stated that discrimination based on transgender status or gender identity is sex discrimination, and is therefore prohibited under Title IX. The letter spoke specifically on transgender student use of bathrooms and locker rooms, citing Student A's case resolution in a footnote:
Lawsuit On May 4, 2016, a group of District 211 students and parents sued the district, Department of Education, and Department of Justice in federal court, alleging that allowing Student A access to the girls' locker room was a violation of their civil rights. The group, Parents for Privacy (sometimes called D211 Parents for Privacy, Students and Parents for Privacy, or simply PFP), said that the federal government violated the students' privacy rights as well as the parents' constitutional rights to "instill moral standards and values in their children". The Thomas More Society and the Alliance Defending Freedom supported PFP in the suit. The lawsuit was the first legal challenge to the Obama administration's interpretation of Title IX as allowing transgender students to use the locker room and bathroom facilities corresponding to their gender identity.
On May 26, 2016, Student A, two younger transgender students (called Students B and C), and the Illinois Safe Schools Alliance filed a motion to intervene in the PFP lawsuit. Student B and Student C both attended feeder schools to District 211. All three students were represented by the ACLU. In June, Judge Jorge Luis Alonso granted the motion. The district did not oppose.
In August 2016, PFP sought an injunction which would temporarily prevent transgender students from any access to the school locker rooms which matched their gender identity. In October, Magistrate Judge Jeffrey Gilbert recommended that the injunction be denied because high school students "do not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs". In December 2017, Judge Alonso denied the injunction to PFP, agreeing with the preliminary decision made by Judge Gilbert. Alonso said that there was "no indication that anything has negatively impacted" the education of the PFP students. At the time, PFP's attorneys said they were reviewing options to appeal.
In May 2017, Student A graduated from William Fremd High School. The lawsuit was not dropped because the case was considered capable of repetition, yet evading review. In July, PFP dropped the Department of Education and Department of Justice as defendants because under the Trump administration they had rescinded the Obama-era policies which interpreted Title IX as requiring schools to provide locker room access based on gender identity.
In April 2019, after nearly three years of litigation, PFP dropped the lawsuit against the district. On its Facebook page, PFP announced that the end of the lawsuit did not mean that its fight was over. A spokesperson for the ACLU viewed the case's dismissal as an important act of closure for the district.
Election +2017 District 211 school board race Candidate Votes (#) Votes (%)Anna Klimkowicz10,09320.16%Robert LeFevre8,84317.66%Edward Yung8,26716.51%Katherine David8,04516.07%Ralph Bonatz7,41214.80%Jean Forrest7,34014.66%Write-in730.15%Total50,073100.00%