NEWS: On 3 November 2015 the web site Breitbart published an article titled “High School Girls Forced to Undress Next to Naked Boys,” reporting that:

The federal government declared itself fit for the madhouse by mandating that a Chicago high school allow a full biological male into the girls’ locker room for all purposes, including nudity. This biological male, the feds determined, was different because he thinks he is a female.

The feds have ruled that the presence of a twig-and-berries in the girls’ locker room has been mandated by Title IX of the Civil Rights Act. Yes, ladies and gents and non-cisgenders: it turns out that the battle against sexism enshrined in the ill-written Title IX was actually intended to force underage young women to look at the penises and testicles of mentally ill boys.

Social media shares of that article were frequently appended with the phrase “Obama Orders Chicago School to Let ‘Transgender’ Boy Use Girls’ Locker Room,” wording that appeared neither in the original article nor in the shares generated automatically by Breitbart. On the same date the Daily Caller published a similar article headlined “Feds Order High School to Allow Boys Who Dress as Girls to Use Girls’ Shower, Locker Room,” which more directly articulated a purported link between the President and the school locker room controversy:

The U.S. Department of Education’s Office for Civil Rights has ordered a taxpayer-funded school district in the suburbs of Chicago to allow a male transgender student who dresses like a girl and otherwise identifies as female to use the girls locker room and shower on school premises. The Department of Education has given the school district one month to let the student use the girls’ locker room. If the district does not capitulate, it risks losing federal funding.

President Barack Obama’s Department of Education — which manifestly is not vested with judicial powers — has taken to applying Title IX, a comprehensive 1972 federal law that prohibits discrimination on the basis of sex, to transgender cases.

Daily Caller cited a 3 November 2015 Chicago Tribune article wherein a more complete (and less editorialized) version of events was described. Noting that the student (whose identity was elided due to her age) had identified as a girl for a “number of years,” the paper reported that the government investigation began in 2013 after the girl was subjected to locker room segregation involving a special “privacy curtain”:

Illinois’ largest high school district violated federal law by barring a transgender student from using the girls’ locker room, authorities [have] concluded.

The U.S. Department of Education’s Office for Civil Rights spent nearly two years investigating Palatine-based Township High School District 211 and found “a preponderance of evidence” that school officials did not comply with Title IX, the federal law that prohibits discrimination on the basis of sex.

The student, who has identified as a girl for a number of years, filed a complaint with the Office for Civil Rights in late 2013 after she was denied unrestricted access to the girls’ locker room. District and federal officials negotiated for months, and a solution appeared imminent as recently as last week, when the district put up privacy curtains in the locker room.

But talks stalled after school officials said the student would be required to use the private area, as opposed to offering her a choice to use it. Although the student said she intends to use the private area or a locker room bathroom stall to change, the stipulation constitutes “blatant discrimination,” said John Knight, director of the LGBT and AIDS Project at ACLU of Illinois, which is representing the student.

“[Privacy] is not voluntary, it’s mandatory for her,” Knight said. “It’s one thing to say to all the girls, ‘You can choose if you want some extra privacy,’ but it’s another thing to say, ‘You, and you alone, must use them.’ That sends a pretty strong signal to her that she’s not accepted and the district does not see her as girl.”

For the student at the center of the federal complaint and all other transgender students at the district’s five high schools, the staff changes their names, genders and pronouns on school records. Transgender students also are allowed to use the bathrooms of their identified gender and play on the sports team of that gender, school officials said.

But officials drew the line at the locker room, citing the privacy rights of the other 12,000-plus students in the district. As a compromise, the district installed four privacy curtains in unused areas of the locker room and another one around the shower, but because the district would compel the student to use them, federal officials deemed the solution insufficient.

The paper further reported that the Office for Civil Rights found the student “not only received an unequal opportunity to benefit from the District’s educational program,” but endured “an ongoing sense of isolation and ostracism throughout her high school enrollment at the school.” Superintendent Daniel Cates was quoted by the outlet as calling the decision “a serious overreach with precedent-setting implications”:

The students in our schools are teenagers, not adults, and one’s gender is not the same as one’s anatomy. Boys and girls are in separate locker rooms — where there are open changing areas and open shower facilities &mdash’ for a reason.

The New York Times concurred about the “precedent-setting” nature of the Chicago school controversy and reported that the loss of funding was a potential consequence of non-compliance under Title IX (which covers all gender-based discrimination in federally funded educational institutions):

Federal education authorities, staking out their firmest position yet on an increasingly contentious issue, found Monday that an Illinois school district violated anti-discrimination laws when it did not allow a transgender student who identifies as a girl and participates on a girls’ sports team to change and shower in the girls’ locker room without restrictions.

The Education Department gave 30 days to the officials of Township High School District 211 to reach a solution or face enforcement, which could include administrative law proceedings or a Justice Department court action. The district could lose some or all of its Title IX funding.

Title IX was signed into law in 1972 (though its application to transgender people is a relatively recent development) and applies to all federally funded education programs or activities:

On June 23, 1972, the President signed Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq., into law. Title IX is a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity. The principal objective of Title IX is to avoid the use of federal money to support sex discrimination in education programs and to provide individual citizens effective protection against those practices. Title IX applies, with a few specific exceptions, to all aspects of federally funded education programs or activities. In addition to traditional educational institutions such as colleges, universities, and elementary and secondary schools, Title IX also applies to any education or training program operated by a recipient of federal financial assistance.

In short, the Department of Education’s Office of Civil Rights (not President Obama) investigated the situation and held that a “preponderance of evidence” demonstrated the school’s actions were in violation of Title IX. The issue was not whether the student would be allowed to use the girls’ locker room (something which had already been agreed to), but whether the student could be forced to use a “privacy curtain” while doing so.

Under federal law, federally funded institutions can lose some or all of their Title IX funding should they fail to comply with the law’s provisions, and the Office of Civil Rights found that the high school in question had discriminated against the student under that law. If the school remains out of compliance, it stands to lose Title IX funding (under a 1972 federal law adopted more than 30 years before President Obama was sworn into office). Application of the law’s provisions to the school was neither exceptional nor unexpected, as the investigation had begun as early as 2013 following an impasse between the student’s parents and the school district.

Last updated: 4 November 2015

Originally published: 4 November 2015