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BY MITCH
SMITH AND MONICA DAVEY
The student, who
identifies as a girl, had not been allowed to change and shower in the
girls’ locker room without restrictions.
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A recent news article in The New York Times reported on a clash between an Illinois school district and the federal Office of Civil Rights of the Department of Education regarding the rights of a transgender student.
According to the article, "In a letter sent Monday, the Office for Civil Rights of the Department of Education told the Palatine, Illinois 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."
Apparently, the transgender student identifies as a girl and participates on a girls' sports team but the school district has not permitted the student to change and shower in the girls' locker room without restrictions. According to the article, the district claims that "district officials had 'worked long and hard' to develop a plan that the district believed would balance the rights of everyone involved. That plan entails having the student change beyond privacy curtains in the girls’ locker room."
In its letter, OCR acknowledges that, "except with respect to locker room access, the District has treated Student A consistent with her gender identity as a girl. This includes identifying Student A by her female name and with female pronouns, providing her with full access to all girls' restrooms, and allowing her to participate in girls' interscholastic athletics." According to the article "[t]he student, who has identified as a girl from a young age, has changed her name, received a passport as a female and is undergoing hormone therapy, the Education Department said."
The student has said she would 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. OCR contends that other students' privacy concerns could be accommodated by Student A's willingness to use the privacy curtains and if the District created sufficient privacy curtained areas for any female students wanting privacy.
While this, like most but not all legal disputes, is fact specific, this dispute raises interesting issues, or so it seems to me.
Balancing social values is a challenge. In a liberal society, and I mean that in a John Lockean sense, the individual’s rights tend to be central. To be sure, the rights of the community are not irrelevant. Take national security for instance. The 1st Amendment to our Constitution has been largely interpreted not in absolutist terms but to require a balance between freedom of expression and national security concerns. But it puts a premium on individual rights. In this scheme of things, communal morality tends to take a backseat. Each individual’s rights are important. But, the rights of other individuals are not identical to their or the community’s sensibilities. Often times, these distinctions are disregarded or prove difficult to draw.
This focus on individual rights in our liberal democracy is to some extent reflected in our Constitution by the principle of equal protection of the law set forth in the 14th Amendment. It has often been interpreted to mean that similarly situated persons should be treated similarly. But how do we determine who is “similarly situated’? And who is to decide that? As to the second question, in this country the legislature gets the first crack at making that determination. But, under the doctrine of judicial review, the courts have the last say. American society's prevailing and sometimes shifting values have some influence upon the determinations of these institutions.
In this instance, both the District and OCR have been called upon to determine the scope of the transgender student’s rights but, at the same time, each body has also been required to balance those rights with the rights of other students. These determinations have not been made in a vacuum. The District and OCR have obviously been bound by prevailing law. As well, their decisions have been made against the backdrop of gradually changing values in American society.
OCR’s conclusion, found on pages 12-13 of its letter, is that, “given Student A’s stated intention to change privately, the District could afford equal access to its locker rooms for all its students if it installed and maintained privacy curtains in its locker rooms in sufficient number to be reasonably available for any student who wants privacy.” The availability to all students of privacy curtains would assure each student the right to privacy while changing. Student A’s stated intention to change privately, in OCR’s view, “addresses the privacy interest in not exposing young female students in the girls’ locker rooms to the intimate body parts of Student A - a transitioning transgender girl - in a state of undress.”
The District seems to maintain that it is entitled to require Student A to utilize the privacy curtains and not simply depend upon her “stated intention to change privately”.
In this case, the gap between OCR’s and the District’s respective positions seems very narrow. I believe that the District has the better argument as I don’t think it should be barred from adopting a policy that does not depend upon the stated intention of an individual student, an intention that could change at the discretion of that student.
But what I find most interesting about this dispute is that it highlights the challenge of balancing rights and interests and reaching determinations that reflect sometimes competing social values and interests. Then, too, given what I believe to be a narrow gap between the District’s and OCR’s positions, this dispute does not really address a larger issue lurking behind it. That is the role, if any, of community or public morality in resolving disputes over individual rights and cultural values. As I noted above, but have not discussed in any depth here, it is my view that the dominant values in American political culture reflect liberalism born of the Enlightenment. However, with the emergence on the political scene of Evangelical voters in the latter half of the 20th century, the significance of and weight to be given to public morality have become issues.
That these issues are topical is further reflected in today’s news featuring the outcome of a vote in Houston, Texas on November 3, 2015, over that city’s adoption of an “Equal Rights Ordinance”. The ordinance prohibited discrimination in city services, public accommodations, private employment and other instances based on an individual’s sex, sexual orientation and gender identity, among other protected categories. Opponents stated that the ordinance would allow men claiming to be women to enter women’s bathrooms and cause injury. The ordinance was repealed by a vote of approximately 60% to 40%.
I am not familiar with the particulars of the Houston ordinance and am not taking a position on the vote here. But I will say that when these kinds of issues are addressed at the ballot box, voters’ sentiments and sensibilities on cultural issues and the sway of public morality, rather than dispassionate analyses of competing rights and values, too often tend to dictate the outcomes. That is unfortunate.◻︎
