The U.S. Department of Education’s Office for Civil Rights (“OCR”) recently concluded that a public school district in Illinois violated Title IX both by prohibiting a transgender high school student from using the locker room consistent with her gender identity and also by conditioning the student’s use of that locker room on her use of a privacy curtain or a private stall.  In Township High School District 211 (Ill.) (OCR Case No. 05-14-1055) (Nov. 2, 2015), a student, who has long identified as a female, filed a complaint with OCR when the school district did not allow her access to the female locker rooms for physical education classes and athletics.  Instead, the district provided the student with separate, private changing facilities.

In defense of its decision, the district cited other students’ privacy interests.  Specifically, the district based its position on its concerns that “expos[ing] female students to being observed in a state of undress by biologically male individual” would be inappropriate and that “[g]ranting [the transgender student] the option to change her clothes in the girls’ locker room would expose female students as young as fifteen years of age to a biologically male body.”  OCR rejected those arguments and observed that the district could have addressed both the transgender student’s right to equal access to the locker rooms and the potential privacy concerns of other students by providing a sufficient number of privacy curtains for use by any student who desired privacy.  Indeed, the transgender student at issue in this case made clear from the outset that she would use a privacy curtain if she was able to access the female locker room.

OCR’s findings and conclusions in this case provide additional guidance to public school districts, as well as colleges and universities, as to how OCR will interpret transgender students’ rights under Title IX to access locker room and changing facilities consistent with their gender identity and OCR’s opinion regarding reasonable steps schools can take to address these issues.

This decision by OCR conflicts with a recent federal district court case from Virginia.  In Grimm v. Gloucester County School Board, 2015 WL 5560190 (E.D. Va. Sept. 17, 2015), a district court found that a school district did not violate Title IX by prohibiting a male transgender student from using the male restroom.  The court based its ruling on a Title IX regulation that provides that entities may provide separate toilet, locker room, and shower facilities on the basis of sex if those separate facilities are comparable, 34 C.F.R. § 106.33, despite the U.S. Department of Education’s contrary interpretation of that regulation.  The Grimm case is on appeal to the Court of Appeals for the Fourth Circuit.