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Challenge to Trans Student Bathroom Access Advances

Federal court says valid sexual harassment, religious freedom claims asserted

The Illinois Safe Schools Alliance and three transgender students have been granted intervenor status in the case.
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In a first round advance for the anti-LGBTQ litigation group Alliance Defending Freedom, a federal court judge has allowed a lawsuit challenging the Palatine, Illinois, high school district’s policy that allows transgender students to use restrooms and locker rooms consistent with their gender identity to proceed on theories of sexual harassment and free exercise of religion.

The March 29 ruling by District Judge Jorge L. Alonso came in response to a suit filed by students and their parents in the district who claim the policy unfairly discriminates against cisgender students who don’t want to be exposed to trans students when using what the plaintiffs refer to as “privacy facilities.”

However, Alonso dismissed a claim the policy violated the cisgender students’ right to bodily privacy or their parents’ right to direct their children’s education.

In ruling on a motion to dismiss, the court assumed that the plaintiffs’ factual allegations as true in deciding whether they have stated a potentially valid legal claim. The school district, which moved to dismiss all the claims, has not filed an answer to the complaint, so the plaintiffs’ rather argumentative characterization of the facts has not yet been challenged.

The Illinois Safe Schools Alliance, which advocates on behalf of LGBTQ students, has been granted intervenor status, as have three trans students. The Alliance and the student intervenors are represented by the American Civil Liberties Union of Illinois and the ACLU LGBT & HIV Project.

The complaint uses terminology typical of ADF’s anti-LGBTQ propaganda.

“The crux of this suit is that defendants seek to affirm the claimed genders of students by allowing male students who claim female gender to use privacy facilities (i.e., bathrooms and locker rooms) designated for use by the female sex and female students who claim male gender to use privacy facilities designated for the male sex,” the ADF complaint reads. “Plaintiffs refer to the policy as District 211’s ‘compelled affirmation policy.’... District 211 adopted the policy solely to affirm the claimed genders of those students claiming a gender different from their sex at birth.”

The policy, the plaintiffs allege, has caused cisgender students “embarrassm­ent, humiliation, anxiety, fear, apprehension, stress, degradation, and the loss of dignity.” Those students, the suit contends, “are at continual risk of encountering (and sometimes do encounter), without their consent, members of the opposite sex while disrobing, showering, urinating, defecating, and while changing tampons and feminine napkins.”

The complaint recounts an incident in which Student A, a trans girl, was using the girls’ locker room and a “female student (who is not a plaintiff but who had been sexually assaulted previously) was exposed to Student A’s penis. District 211 failed to investigate or remediate the situation.”

Some cisgender girls, the complaint asserts, have minimized their restroom use to avoid encountering trans girls in the restrooms, “putting themselves at risk of urinary tract infections, dehydration, and constipati­on,” and others have skipped class to avoid encountering trans students during breaks between classes.

The suit also asserts, “Before adopting the policy, District 211 did not investigate the reliability of the science underlying gender-affirmation treatments. Nor did it make any effort to understand the impacts such a policy would have on students exposed to opposite-sex, same-gendered students in locker rooms and restrooms.”

The plaintiffs also complain that students who have objected to the policy have been called “transphobic,” “homophobic,” and “bigoted,” even though many of them are basing their opposition on their religious beliefs about sex and gender.

In many ways, these allegations are cracked mirror images of what trans students allege in their lawsuits about the harms they suffer by being excluded from using restrooms consistent with their gender identity.

Judge Alonso concluded that the plaintiffs have “pleaded far more than necessary… to state a claim for sexual harassment,” even while being careful to add that whether they “can ultimately prevail on this claim is a question for another day.”

On the other hand, he rejected the Due Process bodily privacy claim, writing “So far, the right not to be seen unclothed by the opposite sex is not on the Supreme Court’s list” of fundamental privacy rights. “By bodily integrity,” Alonso wrote, “the Supreme Court was talking about physical bodily integrity, not visual bodily privacy.”

Alonso similarly rejected the claim that the school district’s policy violated the parents’ right to direct the education of their children, specifically on the matter of “teaching their children modesty.” The plaintiffs, he wrote, “cited no case that suggests the right to direct education includes a right not to have their teachings undermined by public school.”

Alonso did, however, find that the complaint adequately states religious freedom claims. Noting that the plaintiffs assert that the district has “a policy allowing male students with female genders to use the girls’ locker rooms and restrooms and female students with male genders to use the boys’ locker rooms and restrooms,” he said under such a circumstance they “are at risk of exposure to opposite-sex individuals while they are undressing or using the restroom, in violation of their sincerely-held religious beliefs.”

The plaintiffs’ religious freedom claims were buffered by their assertion that the district has termed students who object to the policy “bigoted and intolerant” and that those students face heckling.

The posture that the district allegedly took toward students objecting to the policy, “sounds like the sort of ‘subtle departure’ from neutrality that might support a claim under the Free Exercise Clause,” Alonso wrote. Here, the court echoed, without directly mentioning, the US Supreme Court’s view, in last year’s Masterpiece Cakeshop case, of how baker Jack Phillips was treated by the Colorado Civil Rights Commission. In that case, the high court vacated a sexual orientation finding against Phillips, finding that the Commission’s decision-making process was tainted by hostility to religion on the part of several commissioners.

The case continues with a hearing on the remaining counts on April 9.

Updated 5:25 pm, April 3, 2019
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