In
Students and Parents for Privacy v. U.S. Department of Education, (ND IL, Oct. 18, 2016), an Illinois federal magistrate judge issued a report and recommendation denying a preliminary injunction sought by plaintiffs who wish to require suburban Chicago schools to segregate restrooms and locker rooms on the basis of students’ biological sex assigned at birth. The suit also seeks to enjoin the federal government from enforcing its rule requiring transgender students have access to rest room and locker rooms that conform to their gender identity. The court said in part:
The law in the Seventh Circuit concerning the meaning of the term “sex” as used in Title IX may be in flux. Just last week, the Seventh Circuit vacated a decision by a panel of that court that adhered to a longstanding interpretation of the word “sex” in ... Title VII of the Civil Rights Act of 1964 ... as very narrow, traditional and biological. Plaintiffs relied heavily on the now vacated panel decision.... Recent rulings by courts around the country including a district court in the Seventh Circuit evince a trend toward a more expansive understanding of sex in Title IX as inclusive of gender identity. Therefore, the Court cannot say with confidence that Plaintiffs have a likelihood of success 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. In addition, sharing a restroom or locker room with a transgender student does not create a severe, pervasive, or objectively offensive hostile environment under Title IX given the privacy protections District 211 has put in place in those facilities and the alternative facilities available to students who do not want to share a restroom or locker room with a transgender student....
As
previously reported, yesterday the U.S. Supreme Court agreed to review a case from the 4th Circuit raising similar issues.
