Q) Did the Office of Civil Rights change the law regarding Policy 8011?
An argument made by people against the policy was that under Trump/DeVos the Department of Education’s Office of Civil Rights (OCR) they “changed the law” on this issue. By examining the legislative system, you will find that OCR doesn’t “make” or “change” laws. OCR merely indicated that it would no longer investigate claims of discrimination under Title IX when the complaint involved a district which declines to allow a transgender student to use the bathroom of the gender with which they identify. OCR basically indicated that the law regarding whether or not Title IX covers gender identity is unsettled and they were not going to weigh in. Additionally, in the letter that rescinded the Obama era guidelines, the Department of Education stated, “All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.” (Dear Colleague letter from February of 2017).
They are also barred from weighing in by a Texas Federal Court Order which essentially says that OCR, under the Obama administration, didn’t follow proper procedures before it decided to investigate transgender bathroom complaints as Title IX matters. By the time this ruling was made, though, OCR was “under new management” and essentially agreed with the ruling; so OCR has done nothing to question this decision. This decision is only relevant as it relates to OCR investigating Transgender complaints as Title IX violations. It has no bearing on all of the separate civil actions that are out there.
Q) Was this policy necessary and are there cases where districts have been sued for not having such policies?
The courts ARE weighing in on whether or not Title IX protects gender identity/expression and are determining, overwhelmingly, that it does. With rare exception the litigation demonstrates two things:
- Districts which have no such policy and deny a transgender student the right to use the restroom of the gender they identify with get sued and either lose or settle. The litigation costs are expensive, as are the settlement fees… and most all of them do settle. The inference is that they are learning that fighting these cases further, including taking them to the US Supreme Court would be a costly and futile effort, see:
– Mathis v Fountain-Ft. Carson School District (Colorado, 2013)
This is the first case of any kind (it’s from the Colorado Civil Rights Division, not a judge) to hold that it is in fact discrimination to deny transgender students the right to use the restroom of the gender they identify with. [This case has less value as it is a state case interpreting civil rights laws specific to Colorado only and was not a judicial decision.]
– Tooley v Van Buren (Michigan, 2014)
This Plaintiff filed suit against a few different school districts claiming that all of them discriminated against him by not allowing him to use male facilities while he was a student at each school. After two and a half years of litigation, all of the districts settled for several thousand dollars and adopted pro-transgender bathroom policies.
– M.A.B. v Talbot County Board of Ed. (Maryland, 2016)
Transgender student sues, denied right to use male locker room for PE purposes. The school district requests dismissal, which is denied. The student requests an injunction, allowing access to the locker room pending the outcome of the case and this is denied BUT ONLY BECAUSE HE IS NOT CURRENTLY ENROLLED IN P.E. He is specifically told that if he takes PE again he can request another injunction at that time.
Eventually the sides settled with the student being granted access to all male facilities. Per the ACLU:
The settlement agreement is a resolution of the parties’ claims without any finding of liability. However, in the agreement the defendants “acknowledge the likelihood of liability in light of the Court’s Memorandum Opinion and Order dated March 12, 2018.” Under the settlement agreement, Max will have permanent access to restrooms, locker rooms, and other facilities owned and/or operated by the Board of Education that are otherwise designated for boys or men.
[In other words, this district saw the writing on the wall and capitulated rather than risk it.]
– Evancho v Pine Richland School District (Pennsylvania, 2016)
Three transgender students sue the district for having a policy which specifically mandates that transgender bathroom requests will not be granted. They are supported by Labda Legal. The students request a preliminary injunction allowing them to use the restroom they identify with pending the outcome of the case, this is granted. The district files a motion to dismiss, this is denied. The parties settled, with the district rescinding their policy and issuing a new one which specifically allows transgender students to use the restroom of the gender they identify with. The district also had to update its nondiscrimination policies to include sexual orientation.
– Doe v Volusia County School Board (Florida, 2018)
District denies female à male transgender student access to bathroom he identifies with. Student sues. As of August 12, a settlement has apparently been reached whereby the student will be treated as a male in all respects in exchange for dismissing the suit. Apparently, the student getting his birth certificate changed to reflect “male” status was enough to convince the district to grant his request. The settlement is pending as of right now.
- Districts which have these policies and are then sued by conservative activist groups either WIN or the cases are simply dismissed, see:
– Isaac v Duval County Schools (Florida, 2016)
Here, a Republican running for office sues a school district (on behalf of a constituent who lives in the district) for having a pro-transgender bathroom policy. The suit is dropped as the two sides work out an arrangement. The school’s policy, going back to 2008, was always to accommodate students to the extent possible and work out an arrangement that respects all sides. The plaintiffs were satisfied when told that most transgender students prefer a private or neutral restroom and are never “steered” to demanding access to a restroom that does not correspond to their birth gender.
– Smith v Frederick County Board of Ed. (Maryland, 2017)
A female student and her mother sue the district because of its transgender policy, alleging a privacy right violation. The ACLU intervened on behalf of the district. The plaintiff’s dropped their suit. The board president stated that he and other officials were pleased that the suit had been withdrawn and would defend the policy again if other legal action arose.
– Parents for Privacy v Dallas District #2 (Texas, 2017)
Conservative group sues district for having a pro-transgender bathroom and locker room policy. ACLU intervenes on behalf of the district. The district is granted a motion to dismiss the plaintiff’s suit, specifically rejecting all EIGHT counts of the Plaintiff’s complaint, which included arguments regarding “right to privacy,” “right to direct the education of one’s child,” “Religious freedom,” and so on.
– Pacific Justice Institute v Sutherlin School District (Oregon, 2018)
In this case, PJI (a conservative activist group) filed suit on behalf of student who allegedly felt uncomfortable that the school’s pro-transgender bathroom policy allowed biological female’s to be in male facilities under a privacy rights theory. The Plaintiffs dropped the suit when the school assured them that privacy within all bathrooms would be upgraded and when they surmised that they were unlikely to win because similar cases “aren’t going our way.” “This is the way that courts are trending. We at Pacific Justice Institute don’t agree with it. We do believe there are legitimate reasons to keep bathrooms segregated by sex,” Hacke (the PJI lawyer) said.
We also have a lot of guidance coming from cases that haven’t been decided yet by way of rulings on preliminary injunctions; that is, one side or the other asking that, while the court is examining the larger issue, they either allow the student to access the bathroom of their identified gender or deny the student that ability (depending upon which side of the issue the party requesting the injunction is on). To be granted a preliminary injunction a party has to demonstrate that it is more likely than not to “win on the merits.” The courts are routinely granting preliminary injunctions to the students who seek to have this right, see:
– Whitaker v Kenosha (Wisconsin, 2016)
A transgender student (female à male) sues his school district because they won’t allow him to access male-restrooms (among other things). He asked for a preliminary injunction requiring the district to allow him to use the male restroom pending the outcome of his claim. This was granted by the district court and upheld by the appeals court because he demonstrated “a likelihood of success on the merits.” The full case is still pending. The District initially decided to take the issue to the US Supreme Court, but then withdrew the appeal and settled with the student for $800,000. [This means that they determined that simply handing this student over ¾ of a million dollars was CHEAPER than fighting on given the likelihood that they were going to lose.]
– J.A.W. v Evansville (Indiana, 2018)
Student, with ACLU support, sues because the student is denied access to male restrooms. The school district seeks dismissal of the case which is denied. The student seeks an injunction to be allowed to use male restrooms until the case is decided. This is granted (demonstrating a belief on the part of the court that the student is likely to win on the merits).
and denying them to the districts who seek to deny students the right to use the restroom of the gender they identify with, or to conservative activists who fight such policies, see:
– Students and Parents for Privacy v US Dept. of Ed. (Illinois, 2016).
In 2013, OCR, under the Obama Administration, forced this district to adopt a pro-transgender bathroom/locker room policy as part of a Title IX investigation settlement. A conservative group then sued the district seeking to block implementation of this settlement. They asked for a preliminary injunction from a federal magistrate which would prevent transgender students from using the facility they identify with until the entire case was settled. The magistrate denied their injunction; in other words, the district would allow the students to use facilities they identify with while the case was pending (again, they didn’t convince the judge that they were going to win in the end). The conservative group appealed to the district court, which upheld the magistrate’s injunction denial this past December.
– Highland School District v Dept. of Ed. (Ohio, 2016)
Here, the district, under the Obama Administration, was forced to adopt a pro-transgender bathroom policy by OCR. They sued the Dept. of Ed. (backed by a conservative group called the “Alliance Defending Freedom”) seeking to prohibit OCR from enforcing their mandate. As usual, the district asked for a preliminary injunction, asking the court to not force them to adopt the pro-transgender bathroom policy until the matter was fully resolved. Again, this requires a showing by the district that they are going to “win on the merits.” They did not demonstrate this and their injunction request was denied. They appealed to the Sixth Circuit Court of Appeals, which upheld the lower court’s denial of the injunction request; i.e. the district had to implement the pro-transgender policy while the case was being litigated because it was unlikely that the district was going to win in the long run (they failed to show a “likelihood of success on the merits”). Of particular note, the appeals court found that the students would likely suffer “irreparable harm” if barred from using the restroom of the gender they identified with.
– Doe v Boyertown Area School District (Pennsylvania, 2017)
The Alliance Defending Freedom sues the district for its pro-transgender policy and asked for a preliminary injunction barring the school from enforcing the policy until a decision is reached on the merits. This was denied (again, they didn’t demonstrate that they were likely to win as to the overall merits of the case). This past May, the Appeals Court upholds the decision to deny the injunction request indicating, again, that the Plaintiff’s weren’t likely to succeed on the merits. It also stated that the policy was “narrowly tailored to serve a compelling governmental interest” (that is, protecting transgender students). The Plaintiffs requested a rehearing, essentially arguing that recent precedent (mainly, OCR deciding that it won’t investigate these claims as Title IX violations anymore) demands a different outcome. The appeals court reissued a new opinion this past July which still upholds the prior preliminary injunction denial.
– Adams v St. Johns County School Board (Florida, 2017)
Student sues after district denies him the right to use the restroom of the gender he identifies with, pursuant to its policy. The student asked for a preliminary injunction, requesting that the school allow him to use the restroom of his choice pending the outcome of the case. The judge initially denied the request because, apparently he hadn’t had time to become fully familiar with the facts. He addressed the student as follows:
the last thing he wants to be is “someone adding to your problems.” He said even if he had ruled in favor of granting the preliminary injunction, there would still be the trial afterward to affirm or disaffirm.
This past July, the Judge issued a permanent injunction barring the district from enforcing its policy to deny transgender bathroom accommodation requests. The ruling applies to this plaintiff only (but obviously other students will follow this “blueprint” and sue in the same manner). The plaintiff was also awarded $1,000 in damages.