A federal magistrate judge recommended Tuesday that a transgender girl at the center of a lawsuit over restroom and locker room access be able to use the girls’ locker room at her Illinois high school, writing that the Constitution doesn’t protect students against having to share such facilities with their transgender peers.
In an 82-page report, Magistrate Judge Jeffrey T. Gilbert sided against a group of students and parents who sought a preliminary injunction to force the girl to use the boys’ locker room or a private bathroom while the court moves forward with the case.
The case is one of many that challenge the Obama administration’s efforts to expand bathroom access for transgender students based on their gender identity rather than their birth certificates.
Gilbert wrote that a preliminary injunction was an “extraordinary remedy” and said the plaintiffs, who argued that the policy violated their parental and privacy rights, did not show they were likely to win the case on the merits.
“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,” Gilbert wrote.
“A transgender person’s gender identity is an important factor to be considered in determining whether his or her needs, as well as those of cisgender people, can be accommodated in the course of allocating or regulating the use of restrooms and locker rooms,” he continued. “So, to frame the constitutional question in the sense of sex assigned at birth while ignoring gender identity frames it too narrowly.”
The report now goes to U.S. District Judge Jorge Alonso, who has the final say over whether to reject or grant the plaintiffs’ request to bar the student from the girls’ locker room while the case proceeds.
School bathrooms and locker rooms have become battlegrounds in the fight for LGBTQ rights in the months since the Education Department directed educational institutions receiving federal funding to allow transgender students to use facilities that match their gender identity.
The policy, which isn’t legally binding, prompted lawsuits by opponents who argue, among other things, that the federal government trampled student privacy, encroached on states’ rights and exceeded Obama’s constitutional authority.
The Obama administration contends that the accommodations for transgender students are civil rights protected under Title IX of the Education Amendments of 1972, which prohibits discrimination by educational institutions receiving federal funding.
In August, a federal judge in Texas temporarily froze the policy, saying the administration may have overstepped its authority and ruling that a legal challenge by a group of states was likely to succeed.
The same month, the U.S. Supreme Court stayed a lawsuit by a transgender boy in Virginia who sued his local school board after it implemented a policy forcing students to use bathrooms that match the sex on their birth certificate. And earlier in the year, the Obama administration sued the state of North Carolina to block the state’s “bathroom bill,” which bans transgender people from using bathrooms that don’t correspond to their biological sex.
The Illinois lawsuit was brought by a group of four female students, one male student and their parents from Fremd High School in Palatine Township, and names the Education Department, the Justice Department and the school district as defendants. The plaintiffs allege their Title IX rights were violated by the Obama administration’s policy and the school’s agreement to let the transgender girl — referred to as “Student A” — use the girls’ locker room.
Gary McCaleb, an attorney for the plaintiffs, said in a statement Thursday that the magistrate judge’s recommendation “threatens the dignity and privacy” of students by forcing them to share a locker room with the transgender student, whom he called “a biological male.”
“Young students should be not be forced into an intimate setting like a locker room with someone of the opposite sex,” McCaleb said. “We are hopeful that the federal courts will ultimately decide in favor of the privacy rights of all students.”
Gilbert said he wasn’t swayed by the plaintiffs’ claims that sharing a locker room with a transgender student caused them great harm. He noted that the school had allowed transgender students to use restrooms consistent with their gender identity since 2013.
“If Student Plaintiffs did not know they were using restrooms with transgender students during this three-year period, it is hard to say this is a conscience shocking policy,” Gilbert wrote.”Alternatively, if some Student Plaintiffs were aware transgender students were using restrooms consistent with their gender identity during that time and did not complain about it, then it also is hard to say that state of affairs shocks the conscience.”
According to the report, the transgender student had agreed to use a private changing stall in the girls’ locker room, and the school had offered private changing areas separate from the locker room for students who were uncomfortable undressing near her. The judge said students were free to use those alternatives, and rejected claims that students would abuse the policy.
“Put simply,” Gilbert wrote, “this case does not involve any forced or involuntary exposure of a student’s body to or by a transgender person assigned a different sex at birth.”
The judge’s report follows a similar ruling in Wisconsin last month, in which a federal judge issued a temporary order compelling a high school in Milwaukee to let a transgender boy use the boys’ bathroom. In that case, U.S. District Judge Pamela Pepper said the boy, Ashton Whitaker, had suffered “physical repercussions from the policy as well as emotional repercussions.”