CHICAGO — A federal judge in Chicago won’t force a suburban school district to suspend a policy that enables transgender students to use bathrooms and locker rooms of their choice, concluding in a new ruling that decades-old anti-discrimination statutes extend to students whose gender identity isn’t conventional.
U.S. District Judge Jorge Alonso’s refusal late Friday to impose a preliminary injunction is a legal blow for more than 50 families who sued in hopes of getting the Township High School District 211 in Palatine, just northwest of Chicago, to end the policy for good.
Alonso says in his 15-page written opinion that laws prohibiting discrimination by sex do not apply only to those who fall into conventional male-female categories. He said courts have “correctly recognized” that “federal protections against sex discrimination are substantially broader than based only on genitalia or chromosome.”
The ruling doesn’t technically mean the families, who sued under a group called Students and Parents for Privacy, have lost the civil case filed on their behalf in 2016. But it strongly suggests Alonso doesn’t believe the claim at the heart of the lawsuit — that the transgender policy infringes on the privacy rights of other students — has merit.
An appeal was likely, a lead attorney for the families, Gary McCaleb, said Tuesday. The higher court that would hear the appeal, the 7th U.S. Circuit Court of Appeals in Chicago, has issued several rulings recently favorable for transgender students. But McCaleb said this or other cases that raise the same issues will eventually land in the nation’s highest court.
“It’s not a defeat until the Supreme Court rules the wrong way. And I don’t think they will,” said McCaleb, a lawyer for the conservative Alliance Defending Freedom based in Arizona.
The ruling comes 10 months after the Trump administration lifted Obama-era guidance that advised schools to allow transgender students to use the bathroom of their choice. After that change, the families suing in Chicago dropped the government as one of the named defendants.
The student initially at the focus of the lawsuit has since graduated from her Palatine-district high school. The plaintiffs continued the case in a bid to have the policy declared unlawful.
Alonso says the suing families, among other things, hadn’t shown an injunction stopping the school district from enforcing the policy was required to prevent some irreparable harm to students who might share bathrooms or locker rooms with transgender students. He noted the school district policy had been in place for three years before the lawsuit was filed.
“Student plaintiffs did not notice that transgender students were using restrooms consistent with their gender identity, or they knew and tolerated it for several years,” he wrote.
Alonso repeatedly cited the recent 7th Circuit rulings, including one in May in which a three-judge panel said a transgender student at Kenosha Wisconsin’s Tremper High School who identifies as a male should be able to use the boys’ bathroom at his Wisconsin high school.
“A transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing bodily functions,” that 7th Circuit ruling — cited by Alonso — said.
Alonso said such key rulings over the past year regarding transgender and LGBT rights meant direction to trial-level courts from the 7th Circuit “is now clear, and binding.”