Last week, a suburban Chicago school district – High School District 211 – with a ruling by the Department of Education Office of Civil Rights (OCR) that the district was in violation of Title IX. The violation occurred when the District refused to allow our client, a high school girl, to use the girls’ locker room just because she is transgender. In speaking with the media and in school newsletters and a , Daniel E. Cates, the district superintendent, of the process leading up to OCR’s decision. Worse still, he presented an insensitive and inaccurate depiction of what it means to be transgender and sent a message to our client and other transgender students that they are not viewed as equal to the other students in District 211.
District 211 has misstated and omitted a number of key facts regarding the process that led to their announcement last week.
My clients started meeting with the district more than two years ago to explain why their daughter should be treated as a girl at school in all ways, including when using the locker room. As the district has no policy guiding the treatment of transgender students, the parents had to initiate the discussion regarding how the school would treat their daughter in accordance with her gender. They provided medical information regarding her diagnosis with gender dysphoria and her transition to living fully as a girl, including legally changing her name and changing the gender on her passport.
In response to claims by the school that they had not had to deal with transgender students before, the parents brought in representatives from the Illinois Safe Schools Alliance to educate the school administration and staff. The parents made clear to the district that their daughter’s gender and her medical condition is not a choice and that it is essential to her health and her ability to succeed at school that she be treated as a girl, and that means being treated like a girl in all respects including locker room access.
What the district offered was a separate restroom, down a long hallway, where my client has been forced to dress for gym and the athletics she is involved in. The separation serves as a daily reminder that the school does not regard her as a girl or even a human being but as some undifferentiated “other.” For someone who had to assert her voice as a girl and struggle to be recognized, it is devastating to be told “not really” as District 211 has done.
In letters and meetings, we told the district two years ago that by segregating and isolating our client, it was violating not only federal law but also Illinois law explicitly prohibiting discrimination against transgender persons. But the district refused to comply. Only then did we file a complaint to the OCR.
The OCR process involved looking at the school facilities and interviewing coaches, gym teachers, and other staff. OCR staff tells us that (as we already knew) girls do not fully undress when getting ready for gym, some choose to dress in restroom stalls, and girls do not shower after gym (other than after swimming) or many of the sports activities. OCR explored options, including the installation of additional privacy curtains for students who want some extra privacy when dressing or showering.
The district argues it has a “creative” solution to allow transgender students to be in the gender-appropriate locker room, but only if they agree to a condition imposed on no one else – to always dress in a private area away from other students. This is just a new twist on the existing requirement that transgender students dress in a private restroom down the hall. The new proposal is no less discriminatory than the current practice – it just shifts the physical location of it. The OCR rejected the District’s demand that transgender students be required to use the private areas, while other students had a choice.
What our client wants is pretty basic – to be accepted for who she is and treated just like other students. Other students accept her. The school board and administration apparently do not. These adults should remember that many students are unhappy with their bodies – body image issues can be serious in a world filled with unrealistic and often oppressive images of physical beauty particularly for young women and girls. But no other students – no matter how uncomfortable they are with their bodies – are required to hide them. Imagine how it feels for a girl to be told that her body is so unacceptable that she must dress apart from everyone else – even if she might otherwise choose to do so. The message is loud and clear – transgender students should be ashamed of how they look and who they are.
It is upsetting to see the superintendent say that the district is “sensitive” to the needs of transgender students and supportive of them. The district’s actions are the farthest thing from being supportive. You can’t defend discrimination by claiming you’re nice about it. Most damaging, the superintendent asserts that a girl who is transgender has a “male body” and that transgender students are “of the opposite sex” when defending the district’s position. Such assertions are wrong as a matter of science and offensive because they serve to challenge and undermine the very core of a person’s identity. A transgender girl is female. She is a girl through and through – not something in between as the district suggests. And although unnecessary to make a transgender person “really female” or “really male,” many transgender young people including my client have undergone medical interventions to conform their body to their gender. By making these statements, the district undermines the legitimacy of these students’ identities and fails in its stated mission to care for all 12,000 students in its care.
The district claims that its proposed solution for requiring transgender students to dress in a separate area is the best solution as it protects the privacy of the other students in the district. But this isn’t a real issue for students. The only students’ privacy that is being violated is that of transgender students who are outed by the district’s forcing them to dress in a separate area.
The sad thing in all of this is that the superintendent is completely unwilling to accept that this is discrimination. Rather than recognize this – and the harm that his policies are doing to one of his students – he makes himself out to be the victim, blames the process and claims that he is only being “reasonable” and standing on “principles.”
The superintendent’s message raises a serious question about our identity, as a community and a nation – are we ready to accept that shaming an extremely vulnerable group of students is reasonable and principled? What a terrible lesson this message sends the District 211 students and community. Most astounding is the superintendent’s claim that forced segregation amounts to “inclusiveness” and protects students’ “dignity.” It is not. The school district is discriminating against my client. And instead of seeing this as an opportunity to teach acceptance, it is teaching all the students in the school that discrimination is okay.
What a truly devastating message to send. Ever the optimist, I remain hopeful that the district will come around to recognizing that those who discriminate against the vulnerable and disenfranchised are not remembered kindly in history – and will join the many other school districts that treat their transgender students with the respect they deserve.
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Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.