The Obama administration won an early round in the ongoing battle for transgender students to have the right to use the bathrooms and locker rooms that match their gender identity, as outlined in a directive sent to public schools in May.
A federal magistrate in Chicago on Tuesday recommended a judge reject a preliminary injunction in which a group calling itself Students and Parents for Privacy attempted to block implementation of that policy and to reverse local policies allowing a female transgender student to use the girls’ locker room at Palentine’s William Fremd High School, Politico reports.
The group, made up of 51 families and represented by lawyers from religious advocacy groups Alliance Defending Freedom and the Thomas More Society, sued the federal government and Palatine-based Township High School District 211 in May, arguing the privacy rights of cisgender students were being violated by forcing them to share locker rooms with transgender students.
They had hoped in August to have U.S. Magistrate Judge Jeffrey Gilbert block the policy before the start of the school year, but he refrained.
Judge Gilbert instead said at the hearing, which took place in Chicago, that he planned to issue a report with his recommendations to U.S. District Judge Jorge Alonso, who will then issue a formal opinion on whether to grant the preliminary injunction.
“High school students do not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs,” Judge Gilbert wrote in an 82-page report. “In addition, sharing a restroom or locker room with a transgender student does not create a severe, pervasive, or objectively offensive hostile environment under Title IX given the privacy protections [the school district] has put in place in those facilities and the alternative facilities available to students who do not want to share a restroom or locker room with a transgender student.”
Judge Alonso can choose to reject Judge Gilbert’s recommendation, as he is under no legal obligation to follow it, but more often than not district court judges adopt the preliminary rulings from magistrates.
At question is how to interpret civil rights laws in terms of protections for transgender students. The rulings from courts so far has been mixed.
A Virginia 4th Circuit Court of Appeals ruled 2-1 in April that the administration acted within its authority in allowing a transgender boy use the boys’ bathroom. The Supreme Court then stayed that ruling in August temporarily pending a decision on whether they will review the case.
A federal district court judge in Texas issued a nationwide injunction against the Obama administration’s directive concerning transgender bathroom and locker room policy. He has since said he is considering narrowing or clarifying the scope of that injunction, but has yet to do so.
A lawsuit between the state of North Carolina and the U.S. Department of Justice that resulted from the passage of HB2, which restricted bathroom and locker room use for transgender citizens, has been pushed back to see whether the Supreme Court will rule on the case in Virginia.