Accepting a report and recommendation from U.S. Magistrate Judge Jeffrey T. Gilbert, U.S. District Judge Jorge L. Alonso ruled on December 29, 2017, that a group of parents and cisgender students are not entitled to a preliminary injunction blocking Illinois’s Township High School District 211 from allowing transgender students to use restrooms and locker rooms consistent with their gender identity. Students and Parents for Privacy v. United States Department of Education, 2017 U.S. Dist. LEXIS 213091 (N.D. Ill., E.D.).
The dispute grew out of prior legal action by a transgender girl at William Fremd High School in Palatine, Illinios, a suburb of Chicago, seeking to use the girls’ facilities. During the Obama Administration, the U.S. Education Department responded to the student’s complaint by negotiating a settlement agreement with the school district under which Student A, as she was identified, would be allowed to use these facilities. The school district’s willingness to settle turned on a formal Guidance issued by the U.S. Education and Justice Departments construing Title IX to require such a policy.
Reacting to the settlement, an ad hoc group of parents of students at Fremd High School, together with some girls who attend the high school, brought this suit in May 2016, represented by Alliance Defending Freedom, asserting that the girls had a constitutional and statutory right not to have “biological boys” present in their restroom and locker room facilities where they could see girls in a state of undress. The lawsuit targeted the U.S. Departments of Education and Justice for issuing the Guidance and negotiating the settlement. The school district was also named as a defendant. Student A, together with two other transgender students in the district and their parents, were granted intervenor status as defendants.
Magistrate Judge Gilbert, to whom the motion for preliminary injunction had been referred by Judge Alonso, issued his report on October 18, 2006, concluding that plaintiffs were unlikely to prevail on their claims, and recommending that the motion be denied. Plaintiffs filed objections with Judge Alonso.
While the objections were pending there were several developments significantly affecting the case. Donald J. Trump was elected president a few weeks after the Magistrate Report was issued, and he then appointed new leadership to the two Departments after his term began on January 20, 2017. The two Departments then jointly withdrew the Obama Administration Title IX Guidance, opining that it had not been properly issued and that the matter required more study, but not taking any position on whether transgender students had such protection under Title IX, commenting that these issues should be decided at the local level. Thus, the Trump Administration was, at least as of then, “neutral” on the question, although since then Attorney General Sessions and the Justice Department have gone on record as opposing an expansive interpretation of Title IX to embrace gender identity (and sexual orientation) discrimination claims.
However, shortly after the withdrawal of the Guidance, the 7th Circuit Court of Appeals ruled in a similar case, Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017) (petition for certiorari pending), that Title IX does extend to gender identity discrimination claims, and upheld an injunction ordering a Wisconsin school district to allow a transgender boy to use the boys’ restroom facilities at a public high school.
The Trump Administration actions mooted the part of the lawsuit against the federal government defendants, as the policy the plaintiffs are challenging was no longer federal executive branch policy. Thus, the plaintiffs agreed to drop the federal defendants from the case. Also, because Student A has graduated, the plaintiffs’ specific objection to District 211’s agreement with the Education Department concerning facilities access for that student was mooted as well. However, Intervenor Students B and C and their parents, and possibly other transgender students in District 211, would present the same access issues, so the plaintiffs’ claims against the District under Title IX and the Constitution continue so long as the District does not disavow the access policy to which it had agreed.
In essence, Plaintiffs’ Title IX complaint relies on a long-standing Title IX regulation that authorizes schools to maintain sex-separate restroom and locker room facilities, provided that the facilities are comparable in scope and quality. Plaintiffs argue that this authorization of sex-segregated facilities recognizes the privacy concerns of the students (and their parents), and that requiring students to have to share such facilities with transgender students of a different “biological” sex contradicts those privacy concerns. The Magistrate had rejected this argument in October 2016, and the 7th Circuit’s Whitaker decision subsequently confirmed the Magistrate’s understanding of this issue.
Wrote Judge Alonso, “Discrimination against transgender individuals is sex discrimination under Price Waterhouse, the 7th Circuit explained, because ‘by definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.’ Following Price Waterhouse and its progeny, the Court reasoned that a ‘policy that requires an individual to use a restroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance which in turn violates Title IX. Providing a gender-neutral alternative was insufficient to relieve the school district from liability under Title IX, the Seventh Circuit explained, because it was ‘the policy itself which violates the Act.”
The plaintiffs tried to distinguish the Whitaker case because it addressed only restrooms, not locker rooms, and because, they insisted, the decision was so “astonishingly wrong” that its reasoning undercuts its “worth even as persuasive authority.” The problem with that, of course, is that Illinois is in the same 7th Circuit as Wisconsin, so Whitaker is not just persuasive authority; it is binding on Judge Alonso.
The judge insisted that nothing in Whitaker “suggests that restrooms and locker rooms should be treated differently under Title IX or that the presence of a transgendered student in either, especially given additional privacy protections like single stalls or privacy screens, implicates the constitutional privacy rights of others with whom such facilities are shared. Plaintiffs’ critiques notwithstanding,” he continued, “Whitaker reflects a straightforward application of the long-standing line of sex stereotyping decisions, fully in line with the Supreme Court’s guidance on sex discrimination claims.” Thus, under Whitaker, plaintiffs could not meet the first test for preliminary injunctive relief: showing the probability that they would prevail on the merits of their claim. Judge Alonso devoted several paragraphs to explaining why the plaintiffs’ attempts to distinguish or disparage Whitaker were unavailing in meeting their burden under the motion.
“Furthermore,” he wrote, “even if Plaintiffs had shown a likelihood of success on the merits, they would still not be entitled to a preliminary injunction because they have not shown they are likely to suffer irreparable harm in the absence of an injunction, or that they lack an adequate remedy at law in the event that they ultimately succeed on their claims.” Indeed, as far as demonstrating harm goes, “the only specific harm to which they point is the risk of running late to class by using alternate restrooms to avoid sharing with a transgender student and the ‘embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation , and loss of dignity’ allegedly felt by Student Plaintiffs arising from such sharing.” The Magistrate [Judge Gilbert] had found that these were insufficient to establish irreparable injury, because courts routinely award monetary damages for emotional distress, and “the risk of being late to class has not been shown to have any meaningful impact on Student Plaintiffs’ education.”
Judge Alonso considered it worth nothing that the District’s practice of letting transgender students use appropriate facilities had been going on for nearly three years when this lawsuit was filed, but “either Student Plaintiffs did not notice that transgender students were using restrooms consistent with their gender identity, or they knew and tolerated it for several years,” as no examples of actual incidents were proffered in support of their motion. “The passage of time therefore further undermines Plaintiffs’ claim of irreparable harm,” wrote Alonso. “This Court agrees with the Magistrate Judge’s assessment, ‘there is no indication that anything has negatively impacted Girl Plaintiffs’ education.” Judge Alonso overruled the objections, and accepted the Magistrate’s recommendation to deny the preliminary injunction.
Now that pretrial motions have been disposed of, the court gave the defendants until January 30, 2018, to file an answer to the complaint, and set a status hearing for February 8. In light of the Whitaker case and Judge Alonso’s strongly-worded opinion, one would expect the school district to promptly file a motion for summary judgment, if ADF does not decide within the next few weeks to fold up its tent and steal away. Of course, what could change the situation dramatically would be a grant of certiorari by the Supreme Court of the school district’s petition in the 7th Circuit Whitaker case. But the parties in that case were reportedly close to a settlement and had asked the Supreme Court to extend the time for Whitaker’s counsel to file a response to the cert petition, so it appears likely that a cert grant will not be forthcoming during the month of January leading up to School District 211’s court-imposed deadline to respond to the complaint in this case.
The transgender student Intervenors are represented by the ACLU of Illinois and the national ACLU Foundation, with pro bono attorneys from Mayer Brown LLP.