Defining ‘transgender’ under law is still muddy

What did Congress mean when it passed Title IX in 1965 and prohibited discrimination “on the basis of sex” and does that ruling apply to transgender students who self-identify as a gender different from the one in their chromosomes?


(Hoby Finn / Photodisc)

That’s apparently not an easy question to answer. The Obama administration, his education department, and the Sixth Circuit Court of Appeals have considered this question and said that protections extend to transgender students. Some lower courts have gone the other way, reverting to a more literal definition of sex, based on chromosomes in every cell in the body: the sex pair in the cells of a “male” include one X and one Y chromosome and the cells of a “female” have two X chromosomes.

But biologically, not everybody falls into one of those two categories with respect to the sex chromosomes, although no one can deny that people with unusual sex chromosomes would still be considered people and protected by anti-discrimination laws, including Title IX.

The largest question facing schools today is this: In bathrooms and changing or locker rooms, should pre-op transgender students use the one based on their anatomy or based on their gender identity? The US Education Department on Monday said its Office for Civil Rights would begin rejecting claims of discrimination made by transgender students who are required to use bathrooms based on their sex.

Schools cannot ignore the rights other students have when considering the rights of transgender students, but their rights must be considered equally. That’s the problem: considering these rights equally leads to two conflicting conclusions. Transgender students argue they should be able to use bathrooms and locker rooms based on their gender identity, while other students argue they should not have people of the opposite sex seeing them naked and showering.

These are adolescents, after all, and media has painted a picture in these young people’s minds of showers and locker rooms being associated with sex. Porn, which it seems teenagers watch a lot more than we might have thought, is constantly setting sex scenes in showers at gyms.

A solution came about in Township High School District 211 in Palatine, Illinois. That case involved a transgender girl at Palatine High School, Nova Maday. The district allowed her to use the girls’ bathrooms, which have individual stalls, but she had to change in a place that kept her separate from her female classmates, because her body was still that of a male.

In November 2017, Ms Maday and the ACLU of Illinois filed a lawsuit in Cook County Circuit Court against District 211 for denying Nova the use of the girls’ locker room during physical education class and separating her from other students because she is transgender. The goal of the suit is a court order requiring District 211 to treat transgender students the same as non-transgender students with respect to their use of the locker room and to stop segregating Ms Maday and others because they are transgender.

In that case on January 25, Judge Thomas Allen denied an ACLU motion for a preliminary injunction that would have allowed Ms Maday to use the locker rooms without being required to change in a segregated area. She responded to the decision:

“I am disappointed with the decision today,” she said in a press release. “To me, this is a simple question: Am I going to be treated just like any other girl in my school? All I want is to be accepted by my school for who I am—a girl—and be able to take gym and use the locker room to change clothes like the other girls in my class.”

“Clearly, we are disappointed in this decision,” said John Knight, LGBTQ & HIV Project Director of the ACLU of Illinois. “We continue to believe that the school is wrong to discriminate against our client. There is no exception under our non-discrimination laws that allows a school to treat transgender students differently because of lack of understanding or discomfort about transgender people. We are consulting with our client in order to decide how to move forward in the case in light of this decision.”

The Chicago-based Thomas More Society, a national not-for-profit law firm dedicated to restoring respect in law for life, family, and religious liberty, was supporting the school district in this case. “The entire concept is an unprecedented and unjustified invasion of the personal and bodily privacy of school students,” said Thomas Olp, senior counsel for the organization. “We are pleased with this latest development.

“The court denied the ACLU’s motion for preliminary injunction, basing its decision on a 2010 Illinois Human Rights Act amendment requiring that schools may not ‘deny access to their facilities.’ This standard for schools was held by the court to be actually less strict than the normal standard under the Human Rights Act requiring a public accommodation to provide ‘full and equal enjoyment of … facilities.’

“Since the biologically male student who identifies as female was given access by the school to the girls’ locker room but was required to dress in a privacy stall in the locker room, this restriction did not constitute a ‘denial of access’ and was therefore lawful. We are pleased that the judge rejected the ACLU’s interpretation of the law, which would have required schools to provide unrestricted (‘full and equal’) access to opposite sex privacy facilities in schools.

“Still, our clients, who are students and parents of students in District 211 schools, oppose any access given to students of the opposite sex to sex-segregated facilities like bathrooms and locker rooms, irrespective of gender identity. The Human Rights Act has a specific exemption (Section 5-103) protecting sex-segregated privacy facilities against claims of sex discrimination precisely to protect the personal privacy and dignity of students while dressing, undressing, and performing bodily functions. Since District 211’s restriction of the Plaintiff to a curtained changing area within the locker room was based on the Plaintiff’s sex (male), we believe the restriction was lawful under the HRA.”

About the Author

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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