The federal Title IX law that prohibits sex discrimination in schools is at the heart of the dispute between Palatine-Schaumburg High School District 211 and the American Civil Liberties Union regarding transgender students' access to locker rooms.
But a Loyola University law professor says that in two recent federal cases, judges found Title IX irrelevant to cases of transgender students' use of the bathrooms and locker rooms of the gender with which they identify.
Sacha Coupet, director of research at the Civitas Child Law Center at Loyola University, said the Department of Education's Office of Civil Rights has interpreted Title IX as central to protecting the rights of transgender students.
"However, when these claims have gone beyond the Department of Education into federal court, that interpretation has yet to hold sway," said Coupet, co-editor of the recent book "Children, Sexuality & the Law."
A pair of federal courts this year -- in the cases Grimm v. Gloucester County School Board in Virginia and Johnston v. University of Pittsburgh in Pennsylvania -- found that Title IX does not prohibit schools from limiting access on the basis of a person's sex.
Coupet said it not a coincidence that these recent transgender cases have involved access to bathrooms and locker rooms, where people fully or partially disrobe.
"It really is the underlying issue about transgender students," she said. "It really brings the issue to the fore. It's as concrete as you can make the issue."
Coupet said she understands the ACLU's argument that treating a transgender student differently could be construed as discrimination. But from a legal perspective, she couldn't entirely dismiss the privacy concerns expressed by the other side.
"This stuff is really new," she said. "The issue is so new that it seems to fall into all the gaps that the current law attempts to cover."
District 211 officials have said they are sensitive to the needs of transgender students, including assisting in the changing of names, participation in gender-specific sports teams and access to the bathrooms of the gender they identify as, where there are stalls.
But when it comes to locker rooms -- where there aren't stalls and students could undress fully or shower -- it's still a matter of opposite-sex body parts being in a gender-specific space, they said.
Their solution has been to provide a separate changing space for the transgender student to use within a girls' locker room. That practice is the basis of the complaint now before the Office for Civil Rights.
While district officials maintain they are not violating the law, they concede they could be risking approximately $6 million in federal Title IX funding if the Office for Civil Rights disagrees.
"It's one of a growing number of cases," Coupet said. "We're paying attention to these because they're pioneering cases. It's interesting for this to happen in our own backyard."
Whether the Office for Civil Rights makes a finding of compliance or noncompliance on District 211's locker room policy, Coupet said she'd be surprised if the issue made it to federal court and a judge upheld the Department of Education's current stance. But she doesn't believe one more court loss for the Title IX argument will necessarily set a permanent precedent.
Attempts to make same-sex marriage legal failed for nearly 25 years before they recently succeeded.
Two religious liberty organizations -- the Thomas More Society and Alliance Defending Freedom -- recently sent District 211 a letter citing existing case law they believe supports the school district's position. Among them are the cases cited by Coupet. District 211 has declined to comment on the letter.
Coupet said the interest taken by the two religious groups is another aspect of what makes the District 211 case interesting. While the case can legitimately be seen to be about privacy along, new societal dilemmas also raise issues of religious liberty, Coupet said.