There were two questions looming in the background that needed answers. The first one was how long before the insanity and illegality of Title IX as reflected by the Department of Education’s Office of Civil Rights “dear colleague” letters to colleges would filter down to younger students. The second was whether they would breach the gender divide.
Federal education authorities, staking out their firmest position yet on an increasingly contentious issue, found Monday that an Illinois school district violated anti-discrimination laws when it did not allow a transgender student who identifies as a girl and participates on a girls’ sports team to change and shower in the girls’ locker room without restrictions.
It may well be argued that the Township High School District 211 in Palantine, Illinois, should have done something more to accommodate the needs of its transgender student, although it begs the question of what that might be, and at what cost to the public.
Should it have built a third locker room facility for one student? Should it allow the student to use the locker room after the other students were done and gone? But wouldn’t that too distinguish the student, depriving the student of the right to be just like any other? And wouldn’t that eat up educational time, depriving the student of the right to his education. So many questions and problems involved in changing the gender divide.
But the OCR doesn’t care. That’s not its problem.
In a letter sent Monday, the Office for Civil Rights of the Department of Education told the Palatine district that requiring a transgender student to use private changing and showering facilities was a violation of that student’s rights under Title IX, a federal law that bans sex discrimination. The student, who identifies as female but was born male, should be given unfettered access to girls’ facilities, the letter said.
“All students deserve the opportunity to participate equally in school programs and activities — this is a basic civil right,” Catherine Lhamon, the Education Department’s assistant secretary for civil rights, said in a statement. “Unfortunately, Township High School District 211 is not following the law because the district continues to deny a female student the right to use the girls’ locker room.”
Catherine Lhamon suffers no constraints gladly. Not law. Not policy. She has an agenda and, left to her own devices, will recreate the schools of this nation to fit her image. Let’s be real about it; it’s not like anyone has seriously challenged her ability to do so yet.
Nor is Lhamon’s agenda up for a vote of public approval or discussion. The school tried pretty hard to accommodate the needs of its transgender student. It was not just mean and intransigent.
Officials in the Palatine district, which serves more than 12,000 students, have framed their position as a middle ground. The transgender student in question plays on a girls’ sports team, is called “she” by school staff and is referred to by a female name. But the district, citing privacy concerns, had required her to change clothes and shower separately.
The district said she was allowed to change inside the girls’ locker room, but only behind a curtain. The student, who has not been publicly identified, has said she would probably use that curtain to change. But she and the federal government have insisted that she be allowed to make that decision voluntarily, and not because of requirements by the district.
Bear in mind that this student identifies as female, but has the standard equipment of a young man. That means that the girls who use the girl’s locker room, the ones who aren’t transgender, who are okay with their gender identity, will be compelled to share their space with a student with male genitalia.
Whether or not you think this is a big deal isn’t the point. You’re entitled to your personal agenda, as is Catherine Lhamon. But she’s imposing hers on others, with no authority to do so. What of the agenda of the girls in the locker room? What of the agenda of the parents of the girls? What about the educational environment to which they’re entitled?
Dr. Cates, the superintendent, said parents had made it resoundingly clear that they favored “maintaining some measure of privacy expectation” in the locker rooms. He said the district would continue settlement negotiations with Education Department officials, but added, “We do stand on the position that we have not violated any laws.”
The girls who identify as girls have a right to privacy as well. But as each increasingly marginalized faction steps forward, their rights become predominant over all others. Girls may complain of the patriarchy, but that’s no longer on the front burner. Now, Catherine Lhamon has a new individual to protect, and the protection comes at the girls’ expense.
The Department of Education’s findings, unlike the agreements it reached in earlier circumstances, send a message to other districts wrestling with similar questions, she said. “This is telling them that they have to respect all students’ gender identities,” [Lamda Legal’s Demoya] Gordon said.
Except where is the respect for the gender identity of the girls who have no gender identity issues? Poof, gone. In the clash of rights, this isn’t even the tail wagging the dog, but a single hair on the tail doing the wagging.
But the core question is by what authority does the OCR impose its vision?
One sex. The other sex. That’s in the law. Then “all students, including transgender students, are protected from sex-based discrimination under Title IX.” That’s nowhere to be found in the law, except that OCR says so.
It’s wonderful that such concern for the welfare of a young transgender student exists, and that efforts are made to accommodate her needs. But when the federal government becomes a Super School Board, ramming its progressive vision of discrimination down actual school board’s throats in a way the law does not require, and at the expense of the other students, it’s no longer quite so wonderful.
But it’s here. The DoE OCR says so. And nobody in Washington seems to care enough to tell Catherine Lhamon that she doesn’t get to make decisions for all the children. And this is high school, having quickly slid down the slope from college. There is no conceptual ledge that will stop the slide to elementary school. And younger.
Do you think gay students should have restrictions on locker room use?
I prefer pepperoni on my pizza. Do you hate girls so much that you would happily sacrifice their educational environment without blinking?
So put changing stalls in the locker rooms. No one has to see anything disturbing and everyone can be modest.
Have you ever been in a high school locker room?
Yes I have and I wouldn’t have minded a changing stall. Do you have an objection to privacy?
I have an objection to recreating the world at other people’s expense every time some flavor of the month victim becomes the focus of hand-wringing. I have an objection to yesterday’s flavor of victim being thrown under the bus for today’s flavor. Why not give every children their own magic school to meet their every happy expectation of fabulousness?
You wouldn’t mind a changing stall? So go down to your local school board, offer to pay to tear out the locker rooms and rebuilt them to give every student a changing stall so they can have the privacy you think they deserve, and let them rename the school after you.
But you better have a lot of money, because tomorrow, there will be some new victim, and they’ll want more, and more, and more. None of it needed, none of it mandated by law, but someone like you will write something insipid like “I wouldn’t mind…”
If she has male genitalia but identifies as transgender then what’s the test for good faith transgenderism? What’s to stop enterprising horny high schoolers a la Porky’s from telling the administrators they’re transgender? Does a student get one gender change per semester, year, high school career, etc.?
Assuming good faith, and I don’t question it in this particular case, you’re still having underage girls through school policy openly get naked with a fellow student donning uncovered male genitalia. In high school, girls don’t get the option to change or not change for gym class or EC sports.
Sometimes things which seem odd (“gender is what I say it is, at any time”) drive solutions which are actually better. This is one of those times.
It isn’t that hard or expensive to make some private changing areas for everyone. literally “curtains, on racks.”
This solves the issue for those who want privacy. And frankly it never made a ton of sense to refuse to give privacy to a bunch of teens anyway; why we force 13-17 year old kids to get nekkid in front of their peers whether or not they want to is beyond me. My local YMCA has tiny shower stalls which aren’t much larger than a group shower, and it has a couple of changing areas for those who don’t want to strip down in the main room. Problem solved.
Except the school did put up a curtain, and that’s exactly what OCR rejected.
The school district put up a privacy curtain solely for the trangender student, and required her to change behind it. That’s a bit different than creating private changing facilities available to all students, or having it optional for those who don’t want to change in the main room.
So every kid who wants a private room gets one? You building the school to contain these rooms? You paying the taxes so that no transgender student is forced to change behind a privacy curtain. And all students get them if they want to? No, schools don’t have the money to educate, but we have plenty of private changing rooms. Perfect.
But the biggest problem is that if the student doesn’t feel like being “forced” to be segregated (separate but equal?) or stymatized, but wants to change in the big room with all the other girls, OCR says that’s her right. As for the rights of the others not to have an anatomical boy in their locker room?
So all these expensive and impractical (not to mention ridiculous) means of circumventing the problem won’t solve the problem. You can’t make the kid do anything the kid doesn’t want to do. And the kid can change his mind anytime he wants.
Nice changing rooms you got there, pal.
I didn’t suggest that all students should get private changing rooms, just that there is a distinction between isolating one individual who’s told she has to use a private space to change vs. making private spaces available to everyone to use voluntarily.
I get that part of the concern is OCR’s overreach (here as well as in the college sexual assault context) of writing provisions into the law that aren’t there. It’s worth pointing out, though, that the EEOC has adopted the same basic interpretation of Title VII of the Civil Rights Act to protect transgender people from discrimination based on sexual orientation. While it would be better if Congress could be convinced to amend the Civil Rights Act to explicitly say so, OCR isn’t the only offender here if you’re worried about overreach. On the other hand, OCR’s and EEOC’s interpretation of Title IX and Title VII respectively are still subject to a vote of public approval or discussion, just not at the local level. If Congress wanted to amend the Civil Rights Act to explicitly remove transgender people from its protections, that’s within their power too.
Scott, you say that “Whether or not you think this is a big deal isn’t the point.” It seems to me that it’s difficult to separate the merits of the OCR and EEOC interpretation from how you feel about the underlying issue. Would you willingly accept the Federal government becoming a super school board, ramming its progressive vision of discrimination down actual school board’s throats at the expense of other students, in a way the law DID require as amended by Congress?
As for those other students’ rights… well. It wasn’t so long ago that we decided as a matter of law that when students and their parents complain bitterly about their children’s right not to have to share locker rooms and classrooms with little Negro children, those weren’t “rights” we cared to protect as a society. What’s the principle that differentiates that from protecting transgender students from being banished to a private changing room, other than one’s own personal squickiness about transgender people?
I think you’ve jumped a few sharks here. First, Congress never put transgender people into Title IX (which isn’t the same as Title IIV, which covers a very different list of classifications). The correct approach would be that if Congress wants transgender students included, it should say so. It hasn’t. They’re in there because one woman, Lhamon, says so.
Second, comparing transgender to black is a false analogy. There is a very rational basis for not wanting children with male genitalia in a locker room with female children. Do I really need to explain this at length?
And third, there are a laundry list of accommodations made which, of necessity, distinguish people in order to make the accommodations viable. If a business has one orthodox Jew, must it close on Saturday so no employee has to work and the Jew isn’t stigmatized?
Finally, I can’t see the distinction between “not saying every student gets a private changing room” and “only those students who want a private changing room should get one.” If it’s an entitlement, it’s an entitlement.
Congress never put transgender people into Title VII either. From the EEOC website:
“While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with case law from the Supreme Court and other courts, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.”
Yet, the EEOC relies on case law to interpret Title VII’s prohibition against discrimination based on sex to include discrimination based on transgender status or gender identity. Title IX uses the same phrasing of prohibiting discrimination on the basis of sex. It’s fair to accuse both the EEOC and OCR of overreaching, but I don’t see a principled distinction between the wording of Title VII and Title IX in that context.
Regarding rational basis for not wanting children with male genitalia in a locker room with female children, does that rational basis extend to children with female genitalia in a locker room with male children? Are either of those related to a “rational basis” for not wanting gay or lesbian individuals to share a locker room with people who share the same genitalia? It seems to me much of the concern about genitalia boils down to “but she’s really a boy, so she doesn’t belong”, which goes to the heart of what being transgender means. If you reject that she’s “really” a girl, then there’s a deeper point of contention that can’t be solved at any level of accommodation.
Title IIV and Title IX are different laws, yet you’re still trying to compare the two. They aren’t comparable. Title IX is limited to one, and only one, prohibition, sex discrimination, unlike the laundry list of Title IIV. And the language explicitly states it’s a binary choice, one sex or the other. There are no 16 choices in between, and Congress could change that but hasn’t. More importantly, the EEOC goes to court to see if its position flies. Lhamon sends a royal letter and the world of education must dance to Lhamon’s tune.
As for boys, girls, gays, we are talking about one thing here (though obviously, it would apply to a girl in a boys locker room as well). Diving down a rabbit hole of distinct issues doesn’t strengthen any point. Focus on the issue at hand, unless you’re point is that you’re shooting blanks and prefer to argue some other issue instead. Save your gay analogies for a post about gays. This has nothing to do with homosexuality.
I distinguish between “here are some curtains, anyone can use them if they want” and “transgender student, please stay behind the curtain.”
They may well lead to the same outcome. Perhaps everyone will insist on privacy, leaving the transgender student alone . But that is a question of process, and I see that as important. (Also, I support allowing ANYONE to change in privacy, if they want to.)
So you would have all the other girls stand behind the curtain so the transgender student isn’t forced to have the privacy she demands? Interesting how you’re happy to burn one of your favorite groups so quickly. And see my reply to Peter as to rooms for everyone.
Sounds to me like the school board has every legal and moral right to tell this stuck up government agent to kiss off and we will see you in court.
Then need to file a billion dollar lawsuit against the agency for violating all the other females rights.
All the guys at the HS should claim they are girls, and all the girls should claim they are guys.
Might I suggest a punk band that went by the name Fluk of Pink Indians, Patrick?
You might like their hit single the Fu*cking C*nuts Treat Us Like Cocks and the Fu*cking
Cocks Treat us like C*nuts
It might be a little young for most of the people here, but I was thinking Boys & Girls by Blur
I’d love to see what would happen if the school district refused to co-operate with OCR. It’s hard to imagine the DoE actually terminating funds in this case.
I am glad your mind is doing some heavy lifting today Quinn.
The logistics alone make me want to rediscover all the bible passages that refrence the prostrate.
Speaking of which…
Adele Rapport (what a cool last name!) the “Regional Director”, of region V (which is not V for vagina but 5 for all you poor saps that weren’t home schooled) of all places, gets all the fun of writing fourteen page letters but then she hands off all the field dressing chors to Melissa Howard the “Attorney Advisor”…what’s up with that?
Well, I am sure Melissa doesn’t mind as this experience will FOR certain put her in the top five for getting a slot on next President’s legal team where she can deal with the more subtle and exciting verbage surrounding assinations and the like that make this “crazy”
Sybil stuff look like child’s play.
But all this makes me wonder what sort of lucky bastard advisor of attorneys or Attorney Advisor from the school district in question is gonna get the unique pleasure of being the designated hitter in this game of t-ball?
The esteemed one should put his name in the hat for that action and you could too Quinn. The opt out letter for the various locker rooms alone is gonna be epic! And BTW The construction of those locker rooms is gonna save the US economy and trickle down some love for my new line of gender inclusuve Dick and Jane hobby stickers so don’t any of you get to thinking too hard.
Relax.. it’s just a dick.
I think the privacy analysis here is pretty irrelevant. In our society, there is a general presumption that you should not be forced to see someone else’s private parts. It is in fact against the law for me to ride my bike down Main street with my privates swinging in the breeze. Public locker rooms and bathrooms are an exception to that general rule; you go in one and you can expect to see private parts that look at least a little bit like your own, but not private parts that look very different from your own.
So, I understand that transgender people lead very troubled lives for some an extended period of time, and that switching gender gives them significant relief. Thus, I am very sympathetic to efforts to allow them to live as their preferred gender without discrimination. However, what is principle behind these locker room and bathroom fights? Do those supporting this action feel that this young woman should be able to walk into any female locker room anywhere, strip naked, and head to the showers? If not, why does the reasoning that applies to those other locker rooms not apply to this locker room? Is it that they feel the harm (of being forced to see different private parts) to all-1 of the users of that locker room is outweighed by the psychological benefit to the 1 young woman?
I’ve got a solution to the problem if anyone cares. How about we abolish the DoE. Education properly belongs at the state and local levels anyway.
That way if California wants to allow transgender students to use the locker rooms of their choice they can. And if Texas wants to ban that practice, they can.
If the parents of said students don’t like a particular state’s policy, they can vote with their feet, as it were.
You are an idiot. The cost of living in TX (cheaper regardless of no state income tax) is comparable to CA? Cost of moving the household half way across the country is negligible? The hell with poor people? Their feet and your post have nothing to do with this.
I have been told by activists, frequently and at great length, that “sex” and “gender” are entirely different things. I’m not wholly convinced of this, but accepting the distinction for the sake of argument, how in the name of the Flying Spaghetti Monster is Title IX even applicable, here, given that it expressly refers to the former and not the latter?
You forget – or are perhaps unaware – that Intersex children exist. They’ve always existed.
There have always been girls with CAH who have a phallus – even if they’re pregnant.
There have always been both boys and girls with various degrees of AIS whose genitalia matches neither a male nor female stereotypical norm.
There have always been children with 5ARD, 17BHSD, or 3BHSD born with female-looking genitalia, where it changes while they’re still at middle school to look male. And those with 45X/46XY MGD, or 3BHSD again (the change can go either way there) born with male-appearing genitalia, and then change to look female (with breasts, hips etc) in a late puberty.
A policy which deals fairly – as in “not making them so miserable they kill themselves” – with all these different situations would be a 7 volume set, if in detail. Transsexuality is just one such case.
What has been found – by trial and error – to work is some broad outlines. Treat a child for all purposes as the sex they say they are (and have a bit of common sense, treating cases as individuals).
Transsexuality is about 1 in 3000. Intersex technically is 1 in 60, but many syndromes are not obviously symptomatic. About 1 in a few hundred have genital variations, about 1 in 2000 can’t be classed as either M or F based on appearance.
Links aren’t permitted, or I’d be giving a dozen citations to back up my statements. Extraordinary claims require extraordinary evidence.
But I am on the ANU (Australian National University) ad-hoc panel of experts advising government on the biological facts behind law reform in this area, and have been called on by professors of medicine and psychology to give supplementary lectures to 3rd year med students.
So why haven’t these facts been known? That, for example, a “girl” will change sex to become a boy if she has 5ARD? (I over-simplify – 1 in 3 such children have female neurology, so really are girls, and require treatment to prevent and as much as possible, reverse the change – see Re: Sally (Special Medical Procedure)  FamCA 237 (22 March 2010) ).
In the past, there’d be a change of school, probably a change of address, certainly a change of clothes, and the past kept hidden. Confidential. Only the new school authorities and medical team would know.
But now, with databases and ID acts, and a massive “culture war” about same-sex marriage and the like, keeping it quiet is no longer possible. Suicides of trans and intersex kids are too well publicised too, they can’t be ignored as just one of those things. So legal reform is needed. Whether the solution we have is the best or not, I don’t know. I doubt it is. I do know it works better than everything else that’s been tried though. “Separate but equal” is a disaster. Education – of kids, of teachers, of school administrators, of lawyers (Hi there!) and legislators is now a neccessity.
Feel free to contact me at any time on this. IANAL, but of necessity, have had to learn a little about laws in Australia, the various states of the US, the UK, the EU and elsewhere.
It’s personal. My son is Intersex (mildly). I have 3BHSD. I will move heaven and earth to spare today’s kids the seven kinds of hell I experienced as a child in the 60s.
The world is filled with people who suffer issues, some real and some imagined. You are one. Your son is one. Your desire to have the world rotate on its axis for your issue is understandable. Every other person with issues has the same desire, but you show no understanding of the clash of rights and interests because you (understandably) care only about yours.
I agree that your son should be accommodated, not because he’s the flavor of victim du jour, but because he’s a human being in need of empathy. But it may not be in the manner you deem perfect, just as every other person with an issue may need accommodation that will come at the expense of your son, or the other students in the class, or the rest of the world.
Every person doesn’t get to reinvent the world to suit their needs perfectly at the expense of everyone else’s needs. That includes you and your son, no matter how strong your appeal to emotion. Everyone has a sad story. Yours isn’t more special than the other kid’s whose needs will be denied by accommodating yours.
Zoe is appealing to fact. CAH is real and means that most girls with phalluses will be cis, and that the numbers are substantial. Zoe is appealing on behalf of a lot more people than herself and her son.
“Respectful and civil” to me means I should acknowledge your actual point, which was that the school should be in charge of the decisions in preference to far-away people with less knowledge of the situation. The school knows their own budget, for one thing, so they are well placed to decide what to invest in accommodating minority group members.
Shower curtains are not that expensive and accommodate more than one minority group. I believe there are Jewish sects which forbid being seen naked even in segregated environments. I know less about Islam but have read about a Muslim girl whose parents complained, successfully, about her school’s shower facilities.
In other words, whether the school agrees with me or not, it’s not a blatantly unrealistic accommodation. It expands the availability of physical education to larger numbers of students and so directly contributes to the school’s educational mission.
Your lack of grasp of logical fallacies is no way to start a comment. Zoe states facts, but her appeal is to emotion, that we should care because of the “seven kinds of hell I experienced as a child.” Aside from this post not having anything to do with CAH, despite some potential cross-over (just because Zoe decided to go off-topic and stick her issue in a place where it didn’t belong doesn’t mean this is now about CAH), you have made a second, far more serious error: this is about OCR rejecting the shower curtain that you propose to be a reasonable accommodation.
So basically, the outcome was exactly the opposite of what you think is a reasonable accommodation. Work on that reading comprehension stuff if you want to comment here. I’ll forgive you the logical fallacy as most people fail to grasp logic at all, so your inability to understand isn’t at all unusual.
“Zoe states facts, but her appeal is to emotion”
Correct. I find that the combination of both is more effective than an appeal to reason alone. An appeal to emotion on its own is meaningless. An appeal to reason on its own unconvincing, even though that’s all that should be necessary.
There’s also a matter of stating that I’m not capable of being clinically objective here. Intellectual honesty requires a disclaimer, so others can take all considerations into account when judging the worth of what I say.
And I appreciated your being honest about it. As for your other comment, I trashed it. This post is neither about your feelings nor your issue, and you don’t get to hijack this post to make it about your issue. That’s that.
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I’m sure it’d be considered somewhat hateful by these types of people but it really seems to me like changing rooms should be divided based on anatomy rather than psychology.
When you phrase your opinion as “it really seems to [you],” then you reduce it to no greater relevance than things that “really seem to” them. Perhaps it would be more useful to put it in terms of logic and reason if you want your opinion to be meaningful to anyone else.