Some large questions looking for answers have arrived on the shoulders of N.H. and his mother, J.H., as she sues the Anoka Hennepin School District No. 11 for violations of the Minnesota Human Rights Act and the Minnesota Constitution based on N.H.’s gender identity.
The question to be answered by the lawsuit is whether a transgender teenage boy, a member of the swim team, can be forced by the school district to use a separate locker room from the rest of the team.
Answering that question may require the Anoka County District Court to revisit the Minnesota Supreme Court’s 2001 decision in Goins v. West Group, where the court said that West did not violate the MHRA by requiring a transgender woman to use a separate bathroom from other women.
Another question is whether recent developments in federal law counsel against policies that would grant access to sex-separated facilities on the basis of gender identity.
And a fourth question is whether or not it is legally significant that for five years ending in 2017, when N.H. was a student, the school district was operating under a consent decree resulting from a lawsuit against the district brought by LGBTQ students who said they were bullied at the schools with no support from the administration. The issues raised in the earlier suit and the issues raised by N.H. are distinct but may share common traits.
Enhanced privacy room built
When he was a student at Coon Rapids High School, N.H. participated on the swim team and in physical education classes. He used the boy’s locker room until the principal told him he couldn’t, a decision that was reversed within hours.
N.H. was hospitalized for mental health concerns within a few days. He was hospitalized again when the school board scheduled a meeting to discuss his locker room use. The discussion was tabled when N.H. decided to request physical education credit for his participation on the swim team so he wouldn’t have to take the classes.
That summer, the school remodeled its locker room to wall off an “enhanced privacy” locker room. In February 2017, the school board held a closed session to determine what locker room N.H. could use, thereby raising another potential legal issue about the legality of the meeting. N.H. was assigned to the enhanced privacy room but did not use it until he was threatened with discipline on March 20, and was then hospitalized again. During that hospitalization his mother transferred him to another school.
“There’s nothing wrong with enhanced privacy but it should never be forced,” said one of J.H.’s attorneys, Christy Hall of Gender Justice in St. Paul. The mother is also represented by the American Civil Liberties Union and Stinson Leonard Street.
The plaintiff suggests that the privacy interests being protected are those of cisgender students. “The school district does not identify any particular cisgender students who raised privacy concerns. Nor does it explain why any speculative privacy concerns could not be alleviated by having the privacy-sensitive student use the enhanced privacy locker rooms,” Hall wrote in a letter addressed to the human rights department.
The strength of privacy rights
Privacy for all students is the motivation behind the school board’s actions, the school district said in a written statement emailed to Minnesota Lawyer (see sidebar).
“We state in the complaint that the school staff seemed to be accommodating and trying to inspire a sense of welcome and inclusion. Once the school board got involved they wanted to crack down,” ACLU attorney David McKinney said.
J.H. attended a board meeting to advocate for her son and “that got the attention of some parents,” Hall said.
In the complaint, the plaintiff states, “On March 10, 2017, following a Board meeting at which N.H.’s mom gave testimony, the Chair of the Board wrote to her stating ‘until specific clarification is received under state or federal law, the use of restrooms and locker rooms will be determined on a case-by-case basis. The goal is to ensure that all students feel safe and comfortable.”
On March 15, 2017, Douglas Wardlow, representing the Alliance Defending Freedom, wrote a 10-page letter to the school board. He wrote, “The legal landscape has shifted significantly in the last several months in a direction that underscores the strength of student privacy rights and the incoherence of gender-identity policies.”
Wardlow, a candidate for Minnesota attorney general in 2018, noted that the U.S. Attorney General and the Department of Education have interpreted Title IX to allow the separation of restrooms and other facilities on the basis of sex, meaning actual physiological sex. State law does not conflict, Wardlow wrote.
“[P]rotecting the important bodily privacy right is a proper use of the law, and evident in myriad areas of the law,” Wardlow wrote.
Furthermore, Wardlow wrote, “Parents have the fundamental right to control their children’s education and upbringing … intermingling the sexes often runs counter to the moral and religious values that parents have a right to instill in their children — and something as basic as modesty and respect for the opposite sex’s privacy should not be diluted (if not destroyed) by a public school policy.”
Goins v. West Group
The purpose of the lawsuit is to provide schools clarity on the law of gender identity discrimination, but it would be all right with Hall and McKinney if Goins got reversed in the process, they said. It was the school district that raised Goins while the human rights department proceedings were ongoing, Hall said.
Goins is about employment, not education, and the plaintiffs are prepared to argue both that it is inapplicable and that it was wrongly decided, the attorneys said. “We know more about gender and sex than we did [in 2001] and Goins was wrong,” Hall said. The Goins court applied the concept of “biological gender” as a basis for restroom use, but “Even if Goins is interpreted to permit schools to designate locker rooms based on an antiquated notion of ‘biological sex,’ that doesn’t provide a justification for isolating and therefore outing transgender students,” the plaintiff said in the letter to the human rights department.
Arbitrary and discriminatory
And the specter of the earlier LGBTQ lawsuit remains. The complaint points out, “The Board and the District have a history of anti-LGBTQ actions, which were linked to a rash of student suicides, including at least four students who were either gay or perceived as gay by other students, and were the subject of a lawsuit filed by the Southern Poverty Law Center and the National Center for Lesbian Rights, alleging that the District’s policies toward LGBTQ students was discriminatory and fostered anti-gay bullying.”
Ostracism and stigmatizing were at issue in the bullying lawsuit and are at issue now, McKinney said. The policy of determining locker room use on a case-by-case basis “smacks of a desire to continue discrimination and arbitrary decision making,” he said. “Imagine a policy that determines on a case by case basis if a black person gets to use the restroom.”
The potential for arbitrary decision making is also the reason that closed door school board meetings to discuss N.H.’s locker room use are disturbing, McKinney said.
Media statement by Anoka-Hennepin School District
Anoka-Hennepin Schools is committed to providing a safe and respectful learning environment and to providing an education that supports all students and families, including transgender and gender nonconforming students.
The use of restrooms and locker rooms are determined on a case-by-case basis. The goal is to ensure that all students feel safe and comfortable. Plans for accommodation for restroom and locker room use are made in consultation with school building administrators, the Title IX coordinator, and superintendent in compliance with state and federal law. This approach is consistent with guidance from the National School Boards Association and the Minnesota School Boards Association. Providing privacy for all students is an important consideration.
Information regarding individual students is considered private student data and the district is not allowed to comment on such information.
Anoka-Hennepin is confident our actions conform with state and federal law.