John C. Fox and Candee ChambersThe “OFCCP Week in Review” is a simple, fast and direct summary of relevant happenings in the OFCCP regulatory environment published every Monday. Here are this week’s developments:

Monday, November 2, 2015: And Now a Transgender Shower Room Case Decision. This is an Office of Civil Rights (“OCR”), U.S. Department of Education, Title IX administrative discrimination Charge Determination involving a biological male high school student transitioning to become a woman at the Township High School District 211 in Palatine, Illinois. The decision has recently leaked out, although now nearly a month old. Title IX of the U.S. Educational Amendments of 1972 (to the Civil Rights Act of 1964) and codified at 38 USC Sections 1681-1688 makes unlawful discrimination on the basis of sex and prohibits educational institutions from excluding students from participating in or denying them the benefits of any educational program or activity receiving federal financial assistance.

CONCLUSION:

“OCR finds by a preponderance of the evidence that the District is in violation of Title IX for excluding Student A [the name OCR gave the teenage Complainant to protect her privacy] from participation in and denying her the benefits of its education program, providing services to her in a different manner, subjecting her to different rules of behaviour, and subjecting her to different treatment on the basis of sex.”

CORE FACTS:

  • During Middle School, Student A transitioned to living full-time as a young woman.
  • Student A presented as a female, legally changed her name, obtained a U.S. passport in her female name, and was diagnosed as “gender dysphoric” and was undergoing hormone therapy but had not undergone Sex Re-Assignment Surgery as of her junior year at Palatine High School during the events which gave rise to her Complaint to OCR.
  • State law required Student A to take and pass Physical Education classes to graduate from High School.
  • The school allowed students 5 minutes to change into gym clothes, 5 minutes to shower and change out of gym clothes and 5 minutes transit to the next class. (On your mark, get set, go!  Another athletic event in the hallways!)
  • OCR found that: “The District has honored Student A’s request to be treated as female in all respects except her request to be provided access to the girl’s locker rooms at the School.”. *** “The District has given Student A unlimited access to all girls’ restrooms in the School, and, * * *, allows her to participate in girls’ athletics.” * * * However, Student A “requested an opportunity to change clothes privately within the girls’ locker rooms, in an area such as a restroom stall.” Student A’s concern was that she did not either want to be “isolated” or to “stand out” and be recognized as different and needing and using different facilities. Student A wanted to dress and shower privately, but mingle with the other girls when fully clothed when drying her hair and mingling and talking before and after athletic events in which the girls were involved.
  • The School District’s Position: “The District said it would not be practicable to grant her request to change privately in the locker rooms because there were too few stalls and too many students.” Here is the School District’s view of the OCR decision:
    • There were three different locker rooms and thus three different physical locations and collections of rooms presenting different physical layouts and concerns for the privacy of other female students, several of whom (and one parent) had complained that they valued their privacy and did not want a biological male observing them naked in the locker rooms and in attached changing and shower rooms:
    • the PE Class Locker Room with a “sizable” open shower room, hair drying stations, lockers and 5 private toilet stalls which could serve as makeshift private “changing rooms” and were used as such by some girls who were self conscious that other girls not see them naked;
    • the PE Class Swimming Locker Room containing an open shower room, lockers, hair drying stations and a few private bathroom stalls; and
    • an Athletic Teams Locker Room also containing an open shower room, hair drying stations, lockers and private restroom stalls.

IMPORTANT NOTE: Girls did not shower in the locker rooms other than after swimming (in the swimming locker room shower room) because of the lack of time to do so. [Boy, I’d love to have the Ban Roll-On concession in that high school in June!) Thus, the availability of private changing areas is the issue in the PE Class Locker Room and in the Athletic Teams Locker Room. [Keep your eye on that ball.] Also, the Swim Class Locker Room fell away as moot in the OCR investigation because Student A had finished her required swim classes and was not again returning to the swimming pool.

SEPARATE BUT EQUAL AGAIN REJECTED: After months of cooperative and intense negotiations, District 211 agreed to install as many shower curtains as it could in all three shower rooms (which appears from the record to apparently be only one private shower curtained area in each of the three shower rooms due to space limitations. District 211 also created an additional 12 private changing areas among the three locker rooms.

FINAL DISTRICT POSITION: Weighing and balancing the interests of the all of the girls and their privacy rights, the School District decided in the end that it could not provide every girl who wished privacy, including Student A, with enough private showers and private changing areas despite the addition of the 12 new changing areas.. The School District thus continued to deny Student A access to the locker rooms with their open shower facilities.

OCR FINAL POSITION: For its part, OCR believed that the existence of the limited private showers and the on average 4 new private changing areas in the 3 locker rooms created enough opportunity for privacy that the School District should have allowed Student A access to its locker rooms.   The OCR record does not report the number of students at Palatine High School, but the High School’s 2015 senior’s graduation photo shows almost 600 seniors seated for graduation (a High School thus of approximately 2,500 students, perhaps). The OCR record did report that the locker rooms were full to capacity when in use during the school day and that there was little time to wait to change [yeah, I guess: I’m 20 minutes in and out of the shower and dressed, and I’m a guy! ] and get to class on time, a problem which had also affected Student A.

WHAT’S NEXT? The Clash Of Two Competing Sets of Legal Rights: This case is apparently going to continue. It has attracted much media attention. Both the School District and OCR believe they have been reasonable and thoughtful about the clash of interests, which is occurring under their watchful eyes and stewardships.  The issue on appeal will be whether the 12 additional private changing stalls the School District could and did make available would have indeed afforded girls in each of those locker rooms the privacy each enjoyed under the U.S. Constitution as measured against the rights of the transgender student to be fully integrated into the life of the girls’ athletic department. These are difficult issues on a thus far garbled record whether any girl’s privacy would have been sacrificed had Student A been admitted to the locker rooms with the additional new private changing areas. The loss of privacy is the School District’s burden to prove. OCR has proven the deprivation of Student A’s statutory rights under Title IX. What a Sophie’s Choice the parties are bringing to the Courts to resolve.

THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

Reminder: If you have specific OFCCP compliance questions and/or concerns or wish to offer suggestions about future topics for the OFCCP Week In Review, please contact your membership representative at 866-268-6206 (for DirectEmployers Association Members), or email Candee Chambers at candee@directemployers.org with your ideas.

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John C. Fox
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