Transgender student's graduation won't end District 211 lawsuit

Plaintiffs in a lawsuit contesting transgender access to locker rooms and bathrooms in Palatine-Schaumburg High School District 211 say they will not be dropping the suit just because the specific student whose access most inspired it is graduating from Fremd High School Tuesday.

Gary McCaleb, senior counsel for the Arizona-based religious freedom organization Alliance Defending Freedom, said one of the main reasons the lawsuit won't be considered moot after Tuesday has to do with the legal principle called "Capable of repetition yet evading review."

This means the merits of a legal issue likely to recur should be argued regardless of whether specific circumstances have changed or ended, he explained.

It's a principle often applied to school cases in which particular students come and go quickly but the legal issues they generated are likely to recur, McCaleb said.

The fact that two other transgender students have already sought similar access in District 211 as "Student A" of the lawsuit perfectly demonstrates that, he added.

Both ADF and the Chicago-based Thomas More Society are representing for free the plaintiffs in the lawsuit, a local citizens group called District 211 Students and Parents for Privacy.

Student A was born male but identifies as female.

After she filed a federal discrimination complaint for being denied access to a girls locker room at Fremd High School, District 211 reached an agreement with the U.S. departments of education and justice in late 2015 allowing her limited access.

Privacy stalls were built in the locker room which she was required to always use and which other students could use if they chose.

The agreement allowing such access specified that it only applied to Student A and would expire with her graduation.

But at the start of the current school year, administrators informed parents and students that similar accommodations were being made for another student at Hoffman Estates High School. In this case, a student who was born female but identified as male was seeking such locker room access.

But members of Students and Parents for Privacy have also challenged District 211's practice of allowing transgender students general access to the bathrooms of the gender they identify as.

One of the cited reasons for differences between bathroom and locker room access is that bathrooms already have privacy stalls while special accommodations typically need to be made for locker rooms.

The federal lawsuit targeting District 211's specific and general transgender practices was filed in early May 2016 and has seen little progress in court since.

McCaleb said the judge in the case has made clear that he's awaiting the outcome of similar, possibly precedent-setting cases elsewhere before proceeding.

Just about the only significant development in the District 211 case since it was filed is that the American Civil Liberties Union of Illinois - which represents Student A - won the right to intervene in the case as a co-defendant.

John Knight, director of the ACLU of Illinois' LGBT Project, responded to the plaintiff's decision to proceed with the lawsuit.

"I would say it's very disappointing in light of the fact the case has no merit," Knight said. "I think having this case go forward only does harm to students."

District 211 officials declined to comment on the pending litigation.

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