This story starts with a transgender high school student who was born male but identifies as female. As a public high school student, she wants the school to recognize her as a girl, to call her by her new legal name, to allow her to use the girls' bathroom and to accept her in girls' athletic programs.
Her high school in Palatine, Illinois, has pretty much complied. Teachers call the girl by her female name. She uses the girls' bathroom. She plays on a girls' sports team. Except, she does hit one wall: The school doesn't provide unfettered access to girls' locker rooms where students shower or change clothes. Administrators have experimented with different arrangements — such as a separate room. The New York Times reported the district said it would allow Student A (her name in this legal case) to change in the girls' locker room, "but only behind a curtain." Student A, for her part, "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."
That is not good enough for President Obama's Department of Education's Office for Civil Rights, which issued a letter Monday that warned Township High School District 211 is not in compliance with Title IX's ban on gender discrimination. The government contends that having different accommodations excludes Student A and denies her "the benefits of its education program" by "subjecting her to different rules of behavior" and "different treatment."
The letter explained that Student A "wanted to be a girl like every other girl."
There's a problem with that wish: Student A is not a girl like every other girl. While in transgender transition, she takes hormones, according to case documents, but remains "biologically male." "The body that transgender students have on the outside is not the identity they are on the inside," District Superintendent Daniel Cates wrote in the local newspaper.
Transgender activists may denounce the school's curtain policy as discriminatory or hateful, but I think it is in the best interests of the child. If Student A wants the other girls to think she is just like them, she probably ought to hide her penis.
Cates believes the school system has to balance Student A's privacy with the privacy concerns of all students. Girls have a privacy expectation, too. Some parents have issues about their girls changing in a room with a biological male.
I asked Assistant Secretary of Civil Rights Catherine Lhamon: What about the rights of others? "All students have privacy rights and all students have rights against discrimination," she answered. Lhamon impressed upon me the fact that Student A has not been allowed in the locker room because she has not agreed to the district's terms. Her case has been in litigation for two years.
When I asked Lhamon about girls who may not want a biological male in the room where they are changing, she answered, "Any student in the locker room is able to use a privacy curtain." Cates translated: "They have the right to leave, is really what they mean." I fear many parents will consider leaving the public school system if the feds go after District 211 because they will be convinced the system will listen to everyone but them. "The problem," Cates wrote, is that the Office for Civil Rights "has no interest in creative or sensitive solutions."
There are limits to what laws can do. Without a curtain, some girls are going to see what they do not consider to be female parts. Is that in Student A's best interest? Lhamon responded, "I don't make decisions for this girl or any other girl." And: "The district has not let her into the locker room. That lack of access violates the law."
In the end, I suspect, the district and the feds will come to an agreement — that all kids can have curtains. Or access to curtains. Lhamon and Cates see that possibility, too.
It must take immense courage for a teenager to announce to the world that, even though she was born with male anatomy, inside she knows she is a girl. Even if Student A prevails and gets the district to back down, that doesn't mean other students will accept her.
The Office for Civil Rights maintains that Student A should be treated like any other girl, even as it recognizes Student A is "a transitioning transgender girl." Student A clearly painfully wants to be accepted. The school district has tried to accommodate her, but it can only do so much.