As many of you know, I was a Chicago Public Schools parent until four months ago, when my family and I moved to Dallas. So, I have been watching with great interest a battle that has been unfolding following a CPS announcement that its schools would begin using new signs for school bathrooms. Some bathrooms, including single-occupancy restrooms and some multi-stalled restrooms, are labeled as gender-neutral, while the rest are labeled as “girls plus” and “boys plus.” Is this something new? And how should schools handle “gender plus” bathrooms?

ICYMI: We’re requiring all schools to adopt new signage to make our restrooms more inclusive. This is a big step forward for gender equity for our students and staff. pic.twitter.com/4JPBdd1jQy

— CPS – Chicago Public Schools (@ChiPubSchools) November 30, 2021

The decision has made news across the nation and even internationally, with some claiming that CPS has implemented completely “gender-neutral” facilities. The addition of some gender-neutral multi-stalled bathrooms is noteworthy. (Illinois has required all single-stalled public bathrooms to be gender-neutral since 2019.) But, the announcement belies the suggestion that CPS has required all bathrooms to be completely gender-neutral. It has clearly added signs to girls’ and boys’ bathrooms indicating that they are “girls plus” and “boys plus.” What does the plus mean? It means that students whose gender identity does not match their sex assigned at birth may use the restroom that corresponds with their gender identity.

Suggesting that CPS has changed the bathroom landscape by creating “girls plus” and “boys plus” bathrooms misses the mark. The law has required such bathrooms in CPS for years. Indeed, CPS has allowed students to use restrooms matching their gender identity since 2016. At that time, the Obama administration interpreted Title IX to require unfettered access to bathroom facilities based on gender identity.

Suggesting that CPS has changed the bathroom landscape by creating “girls plus” and “boys plus” bathrooms misses the mark. The law has required such bathrooms in CPS for years.

Although the Trump administration rolled back the Obama administration’s interpretation of Title IX in 2017, at around that same time the highest federal courts across the country began to disagree. One after another, they held that Title IX requires transgender students access to the restroom that matches their gender identity. Moreover, the slowdown in Federal enforcement under President Trump led to increased protections under state laws, including in Illinois. For example, Illinois law has been interpreted for over two years to require schools to let students to use restroom facilities that match their gender identity.

The law has long recognized “gender plus” bathrooms. CPS’s announcement has not changed the law; it simply changed its signs.

It’s a lot to keep up with. But no matter how you interpret all the shifts and changes, there is no doubt that, at least in Illinois, the law has long recognized “gender plus” bathrooms. CPS’s announcement has not changed the law; it simply changed its signs.

What is new is that now all schools across the country are in the same legal boat as CPS. In addition to the consistent rulings by federal courts, the Biden administration recently returned to the Obama-era interpretation of Title IX, re-extending the law’s protections to transgender students. So, OCR and the federal courts now agree that all schools across the country must allow students to use facilities that match their gender identity. It is therefore extremely important for school leaders to understand what the law requires (and does not require). The CPS situation is a great opportunity to remind ourselves of the requirements and how to best communicate with school communities about transgender bathroom access.

What is new is that now all schools across the country are in the same legal boat as CPS. In addition to the consistent rulings by federal courts, the Biden administration recently returned to the Obama-era interpretation of Title IX. 

What Does Title IX Require for Transgender Facility Access?

The Title IX law generally requires that schools treat students equally on the basis of sex. Title IX’s regulations permit schools to provide separate toilets, locker rooms, and shower facilities separated by sex as long as the facilities are comparable. But neither the Title IX law nor its regulations define sex, so the “exception” for single-sex facilities is not as conclusive as it may seem. In other words, Title IX does not answer the essential question of whether transgender individuals are considered to have the “sex” assigned at birth or the “sex” that matches their gender identity.

The Supreme Court has never considered the rights of transgender students in school. However, federal courts of appeals, which are the courts just below the Supreme Court, have consistently held in recent years that Title IX requires schools to consider a student’s gender identity when deciding which “sex” the student is for bathroom use. That includes the Fourth Circuit, the Seventh Circuit, and the Eleventh Circuit, all of which are generally identified as “conservative” circuits. No circuit court has ruled to the contrary, and the Supreme Court recently declined an opportunity to review the Fourth Circuit’s decision, a move that is commonly interpreted as tacit approval of the lower court opinion.

Moreover, although as noted above there has been some back-and-forth from OCR as to whether Title IX requires access to facilities based on gender identity, the Biden administration currently interprets the law to require such access as well as equal access to sports teams and other benefits of a school’s program or activity. Indeed, the Biden OCR put out a call at the beginning of this school year for transgender students to file complaints if they were denied such access, making clear that it is not just willing but eager to take on such cases. Notably, even where a state’s law conflicts with the federal law on the issue, federal supremacy means that federal law supersedes conflicting state law.

In short, the highest federal courts to address the issue are now joined by OCR in consistently interpreting Title IX to require every school in the country to allow students to use facilities consistent with their gender identity. A school that denies a good faith request by a student to use a bathroom that comports with their gender identity runs a risk of being found in violation of Title IX both through a complaint with OCR and a lawsuit in federal court. In other words, “gender plus” bathrooms have been the law of the land for quite some time, and there is no indication of a change any time soon.

What About Privacy Rights of Cisgender Students? 

The biggest confusion I’ve seen on this issue comes from the misconception that allowing students to use bathrooms that match their gender identity allows any student to use any bathroom they want for any reason. That is not required by the law and I’m not aware of a single K-12 school that interprets the law that way.

A school need not allow a student to go into a bathroom of another gender just because they are “curious.”

Gender identity is a medical term for a person’s deeply felt, inherent sense of belonging to a gender. Most people have a gender identity that matches their sex assigned at birth. Those people are referred to as “cisgender.” Some, however, have a consistent, insistent, and persistent gender identity that differs from the sex assigned to them at birth. Those individuals are known as “transgender.”

What does that mean for school bathrooms? It means a school need not allow a student to go into a bathroom of another gender just because they are “curious.” Nor could cisgender male students choose to use “girls plus” bathrooms because they are cleaner. Similarly, a cisgender female student could not choose to use “boys plus” bathrooms because they are curious about urinals or male private body parts. Rules requiring gender identity equity in bathroom use do not protect a student who sneaks into the bathroom of a gender with which they do not identify without permission or who engages in misconduct in any bathroom. Attempts to manipulate or abuse a “gender plus” bathroom policies can and should be dealt with as any other disruptive student behavior would be—through discipline and other consequences.

Finally, “gender plus” bathrooms do not invite students to change their minds daily about what bathroom to use. Gender fluidity is a real thing, but the issue does not come up in schools nearly as often as transgender requests. Every request I have seen in my 15-year career as a civil rights attorney working with schools has been a request from a transgender student to use a single type of bathroom that corresponds with their gender identity but not their sex assigned at birth. Requests from gender-fluid students must and should be addressed with care, but as with requests from transgender students, a request must be genuine to be granted. There is no evidence to back the suggestion that students regularly flip-flop back and forth between bathrooms in an effort to manipulate the rules.

Can’t We Just Have Some “Gender Plus” Bathrooms and Keep Some for “Real” Girls/Boys

As explained above, the Title IX law increasingly does not recognize a distinction between a girl whose sex was assigned “female” at birth and a girl whose sex was assigned “male” at birth but who in good faith identifies as female. Similarly, a boy whose sex was assigned “female” at birth but who identifies as “male” is considered a “real” boy under modern interpretations of Title IX. For that reason, courts and OCR have consistently found that requiring transgender students to use a single-use gender-neutral bathroom or to be excluded from bathrooms available to other students of the same gender identity can violate Title IX. In addition to singling a student out and potentially “outing” them as transgender, allowing a transgender student to use only “some” of the bathrooms available to other students has been recognized as having potentially deleterious effects on the student at school and beyond.

Schools can talk with a student and, if warranted, their parents/guardians about requests to use a bathroom based on gender identity. Suggestions that schools cannot ask questions are uninformed.

Communicating with the Community

Schools should communicate that policies allowing students to use facilities that match their gender identities continue to provide for girls’ and boys’ bathrooms. Such rules do not require all restrooms to be completely gender-neutral. Instead, students with legitimate requests to use a restroom based on their gender identity will be allowed to do so. That is all the “plus” means. Schools can talk with a student and, if warranted, their parents/guardians about a request to use a bathroom based on gender identity. In my experience, it is relatively straightforward when a request is being made in good faith versus the rare circumstances when it is not. Suggestions that schools cannot ask questions are uninformed.

Explaining this important nuance is essential. It requires educating employees on the front lines of these conversations on the law so that they can avoid sharing disinformation and inadvertently fanning the flames. Once parents and staff understand that neither the law nor school policy requires letting cisgender students use any bathroom just because they feel like it, many concerns often dissipate.

When it comes to discussing parental safety concerns, schools can look to the courts, which have considered these issues at length over the past few years. Courts have consistently found that allowing the small number of transgender students in our country to use the restrooms that coincide with their gender identity does not create risk for other students or their privacy.  For example, in the now-famous case involving Gavin Grimm, a transgender boy who sought to use the boys’ bathrooms in his Virginia school, the Fourth Circuit Court of Appeals explained that stalls, doors, and privacy strips and screens between urinals provide sufficient privacy to cisgender students when a transgender student shares facilities with them. The Court also noted that the school district could present no “evidence that a transgender student . . . is likely to be a peeping tom, rather than minding their own business like any other student” in a bathroom.

The Grimm court further explained:

Change can be difficult. Schools and school leaders can go a long way to make these types of changes easier to understand by being clear about what policies require and do not require. Teachers and other school staff must ensure they understand the law and do not inadvertently create panic over concerns that are unlikely to ever materialize. Effective imposition of discipline for any abuse of the rules by students or others can fully address those rare circumstances where students misbehave in the face of new rules.

Title IX is a civil rights law like many others. Under its current interpretation by the courts and OCR, schools cannot separate “male” students from other “male” students and “female” students from other “female” students, just as they cannot separate students based on race, color, or national origin in bathrooms, or separate students with disabilities from other students in bathrooms. Under the modern interpretation that has been growing in acceptance over the last half a decade, “male” and “female” include individuals who were assigned the gender at birth and those who identify with that gender in their day-to-day life. School leaders are in the tough but ultimately manageable position of helping parents and other community members understand the limits to what the law requires while also protecting the rights of the students whom the law is intended to protect.

If you need assistance working through these challenges, do not hesitate to contact me at jwernz@thlaw.com, or contact any other Thompson & Horton attorney.