Trump reversal of Obama transgender rule puts landmark local case in limbo
After two years, an investigation by federal education officials and an unprecedented finding that Palatine-based Township High School District 211 violated federal law, administrators agreed to make the accommodation for a transgender student seeking to use of girls’ locker room.
Long before the Trump administration announced it was pulling federal support for transgender students in schools, a Chicago-area teenager challenged a local district on locker room access and won a case with national implications.
Identified publicly as Student A, the teen filed a complaint with federal authorities in 2013 seeking access to the girls’ locker room in Palatine-based Township High School District 211 school. After two years, an investigation by federal education officials and an unprecedented finding that the district violated federal law, administrators agreed to make the accommodation.
Now it’s unclear whether that settlement is jeopardized by last week’s decision by President Trump cabinet members to rescind the Obama-era guidance that paved its way.
Citing pending litigation, both the school district and the U.S. Department of Education declined comment. Meanwhile, attorneys for both the student and for the parents’ group that filed suit seeking to undo the agreement have threatened to go back to court.
The rollback of the Obama rule — which took the stance that the federal Title IX law prohibits discrimination of transgender students — has stoked an already divisive issue. School districts and families alike scrambling to understand what it could mean for them. Officials from a number of districts in and around Chicago said they have no plans to modify their guidelines that allow transgender students to use the restrooms and locker rooms of their gender identity.
None of those districts, however, entered into a binding agreement with the federal government.
So far, the access provided to the District 211 student at the center of its federal settlement has not been changed, according the American Civil Liberties Union of Illinois, which represents the student.
"Everything is the same, and she has every expectation it will remain that way for the foreseeable future," said ACLU spokesman Ed Yohnka. "She is happy to have access to the appropriate locker room and not be forced into a segregated locker room."
But attorneys for the group that sued District 211 and the federal government over the locker room access are encouraged by the Trump administration’s move. Two days after the new guidance came down, federal officials formally notified the judge in the District 211 case about the rule reversal and called for further consideration of the legal issues surrounding the matter, court records show.
"By rescinding the guidance, the federal government is no longer in a position to pressure school districts like Palatine," said Gary McCaleb, an attorney with Alliance Defending Freedom, which represents the parents who sued. "What that means for the past agreement is something the parties are going to have to discuss and, if necessary, take back to the court. But in our view, it’s a right step forward to restore the historic and clear meaning of Title IX as protecting sex and not gender identity theory."
He added: "Certainly, the federal government needs to make clear whether they’re going to stand by an agreement that rested in guidance that now no longer appears to have any basis in the federal position."
The December 2015 agreement between District 211 and the Department of Education’s Office for Civil Rights sparked bitter debate among community members. The district risked the loss of millions of dollars in federal funding and legal action if it failed to reach a resolution.
The agreement went beyond giving the student entry to the locker room. It required the district to consult a child and adolescent gender identity expert, revise its nondiscrimination notice and ensure the student has access to female facilities when traveling in district-sponsored events. While those conditions have been met, the agreement also called on the district to file regular reports and submit to monitoring through June 30, 2017.
Yohnka, of the ACLU, remains confident that the District 211 agreement will remain intact.
"Frankly, if any school district in Illinois withdrew a policy that accommodated and affirmed students who are transgender simply because of the Trump administration’s withdrawal of this guidance, we would seriously weigh legal action," he said. "The law didn’t change, and there’s no reason for the treatment of students to change as the result of that action by the administration."
Removing such a critical decision from the hands of the federal government likely will result in variability across states and even towns as to how transgender youth are treated, said University of Illinois at Chicago professor Stacey Horn, who chairs the educational psychology department.
"That inconsistent support opens up a window for these policies and procedures and protections being turned on and off at a whim, depending on who is in control, who is on the school board and what families move in to the community," she said. "The damage is that young people think, ‘I feel safe. I feel supported. I can go to school,’ but then all of a sudden that gets taken away from them, and what does that mean for their continued education and health? It wreaks havoc on their lives."
Sarah Schriber, director of the nonprofit Prevent School Violence Illinois, said there’s already been an uptick in bullying and harassment motivated by transphobia and racism in recent months. She and a number of legal and school experts are watching closely the case of Gavin Grimm, a transgender student in Virginia who sued over access to the boys’ bathroom. The U.S. Supreme Court is set to hear the case this month, though attorneys for the Gloucester County school board last week referred to the new guidance when asking the court to delay oral arguments.
"We’re all holding our breath," Schriber said. "The guidelines themselves may become a moot issue, in a good way, and pass into the night. That’s my hope."
On Thursday, nearly 200 lawmakers filed a legal "friend of the court" brief in the Grimm case arguing that Title IX protects transgender and gender non-conforming youth. On the same day, more than 100 members of Congress — including a handful from Illinois — penned a letter to Trump, urging him to reconsider the reversal and to meet with transgender students and their families.
"What the president has done is put a cloud of confusion on how to interpret Title IX that would affect the most vulnerable young people," said U.S. Rep. Jan Schakowsky, a Democrat from Evanston who signed the letter. "What kind of person would do that? These are students, many of whom have experienced harassment and discrimination. It’s just so mean, just cruel."