Students and Parents for Privacy v. Sch. Dirs. of Twp. High Sch. Dist. 211

377 F.Supp.3d 891

STUDENTS AND PARENTS FOR PRIVACY and Victoria Wilson, Plaintiffs,

v. SCHOOL DIRECTORS OF TOWNSHIP HIGH SCHOOL DISTRICT 211, Defendants,andStudents A, B and C, by and through their parents and legal guardians Parents A, B and C, and Illinois Safe Schools Alliance, Intervenor-Defendants.

No. 16 C 4945

United States District Court, N.D. Illinois, Eastern Division.

Signed March 29, 2019

Gary S. McCaleb, Jeana Hallock, Joseph E. La Rue, Pro Hac Vice, Alliance Defending Freedom, Scottsdale, AZ, Douglas G. Wardlow, Pro Hac Vice, Prior Lake, MN, John Matthew Sharp, Pro Hac Vice, Alliance Defending Freedom, Lawrenceville, GA, Peter Christopher Breen, Thomas L. Brejcha, Jr., Thomas Gerald Olp, Thomas More Society, Chicago, IL, for Plaintiffs.

Jennifer Ann Smith, Michael A. Warner, Jr., Sally J. Scott, Erin D. Fowler, Franczek Radelet PC, Patrick M. DePoy, Bryan Cave Leighton Paisner LLP, Chicago, IL, for Defendants.

Britt Marie Miller, Laura Rose Hammargren, Linda Xuemeng Shi, Timothy Simon Bishop, Mayer Brown LLP, John A. Knight, Roger Baldwin Foundation of ACLU, Inc., Chicago, IL, Catherine Anna Bernard, Madeleine Lott Hogue, Pro Hac Vice, Mayer Brown LLP, Washington, DC, Ria Tabacco Mar, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, for Intervenor-Defendants.

MEMORANDUM OPINION AND ORDER

JORGE L. ALONSO, United States District Judge

After defendants adopted a policy allowing transgender students to use the bathrooms and locker rooms of their choice, plaintiffs filed a first amended complaint against defendants School Directors of Township High School District 211 ("District 211"). District 211 and intervenor-defendants move to dismiss. For the reasons set forth below, the Court grants in part and denies in part the motions to dismiss.

I. BACKGROUND

The following facts are from plaintiffs' complaint, and the Court takes them as true.¹ Plaintiffs Students and Parents for Privacy ("SPP") is a voluntary, unincorporated association of: (1) students who are (or will be) attending District 211 high schools; and (2) their parents. Some SPP Students are as young as 14 years. Plaintiff Victoria Wilson ("Wilson") is the president of SPP and the mother of two students in District 211 schools. Intervenor Illinois Safe Schools Alliance is an organization that advocates on behalf of lesbian, gay, bisexual, transgender and questioning young people. Intervenor Student A is a graduate of District 211's Fremd High School, and Intervenor Students B and C are current students of a District 211 high school. Students A, B and C claim genders different from their sex at birth. For example, Student A is a male student with a feminine gender.

Plaintiffs allege that the words sex and gender mean different things. One's sex is either male or female, depending on the union of male and female gametes at one's conception. Gender, on the other hand, is a social construct and runs along a continuum from very masculine to very feminine. Plaintiffs allege that a person's perception of his or her own gender does not change his or her primary or secondary sex characteristics or his or her genes.

The crux of this suit is that defendants seek to affirm the claimed genders of students by allowing male students who claim female gender to use privacy facilities (i.e., bathrooms and locker rooms) designated for use by the female sex and female students who claim male gender to use privacy facilities designated for the male sex. Plaintiffs refer to the policy as District 211's "compelled affirmation policy." Plaintiffs allege District 211 did not adopt the policy based on students' manifesting behaviors or appearances stereotypical of genders different from their own. Rather, District 211 adopted the policy solely to affirm the claimed genders of those students claiming a gender different from their sex at birth.

District 211's enforcement of the compelled affirmation policy has caused SPP Students embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation and loss of dignity. SPP Students are at continual risk of encountering (and sometimes do encounter), without their consent, members of the opposite sex while disrobing, showering, urinating, defecating and while changing tampons and feminine napkins. When District 211 first allowed Student A to use female restrooms, SPP Girls were startled, shocked, embarrassed and frightened by the presence of a male in the girls' restroom.

At some point after District 211 first allowed Student A to use the girls' restrooms but before it allowed her to use the girls' locker rooms, Student A used a girls' locker room anyway. A female student (who is not a plaintiff but who had been sexually assaulted previously) was exposed to Student A's penis. District 211 failed to investigate or remediate the situation. Instead, by December 2015, District 211 allowed Student A to access the girls' locker rooms. At first, the policy applied only to Student A, who was required to change in private changing stations while in the girls' locker rooms. On one or more occasions, Student A failed to use a private changing station while changing. The reason District 211 allowed Student A to use the girls' locker rooms is because it was used by females. Had the girls' locker rooms not been limited to females, District 211 would not have been able to affirm Student A's gender by allowing her also to use the girls' locker rooms.

After District 211 allowed Student A to use the girls' locker rooms, an SPP Parent requested that her daughter be allowed to use a private locker room. The district refused.

Eventually, District 211 adopted the compelled affirmation policy allowing all transgender students to use the restrooms and locker rooms (including showers) of their choice. All other students must use the restrooms and locker rooms designated for their sex. Before adopting the policy, District 211 did not investigate the reliability of the science underlying gender-affirmation treatments. Nor did it make any effort to understand the impacts such a policy would have on students exposed to opposite-sex, same-gendered students in locker rooms and restrooms.

Under the compelled affirmation policy, District 211 allows students to use the restroom and locker room facilities of their choice, regardless of how each student presents or whether the student manifests behaviors or characteristics stereotypical of his or her claimed gender. Affirming each students' gender under the policy requires the participation of third parties, including SPP Students, who are directed to enforce or conform to the District's actions. District 211 has conveyed to students that when a person objects to the compelled affirmation policy, the person is intolerant and bigoted. District 211 has told SPP Students that if they are uncomfortable using a restroom or locker room, they should leave. Currently, District 211 has male students claiming feminine gender and female students claiming masculine gender. At least one of these students has been allowed to use locker rooms without using privacy stations. District 211 also has students claiming to be non-binary and genderless.

District 211 students are required to take physical education ("PE"). Female students changing for PE and sports are sometimes topless in locker rooms. Students changing for swimming are sometimes naked. Few SPP Students have requested use of a private locker room, lest District 211 view them as bigoted. Use of a bathroom stall for changing is not a good alternative, because such stalls are cramped and less sanitary than a locker room. Thus, SPP Girls and SPP Boys have been denied their allegedly reasonable expectation of privacy while using locker rooms. They have been denied their expectation of privacy in restrooms, as well, because gaps in stall doors allow exposure to the opposite sex.

Plaintiffs allege that SPP Students risk and suffer actual exposure to the opposite sex, which causes them embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation and loss of dignity. The compelled affirmation policy has caused SPP Students to change their behavior to avoid the risk of exposure. For example, one SPP Girl began wearing gym clothes underneath her school clothes to avoid getting undressed in locker rooms. As a result, she wears soiled, sweaty gym clothes under her school clothes for the rest of the school day. One SPP Girl used a private changing stall in the girls' locker room, after which other girls began calling her "transphobic" and "homophobic." That SPP Girl has also been called slang words for female body parts. The taunts deterred the SPP Girl from using changing stalls. The swim and gymnastics locker rooms do not have private changing stalls. Student A, while she was a student at District 211's Fremd High School, was authorized to use the swim locker room at any time. Many SPP Girls shower after swim class in open showers that are visible to other students in the locker room. One SPP Girl is enrolled in swim class (which is mandatory for freshmen and sophomores), and she is fearful, uncomfortable and apprehensive about changing for swim class.

The compelled affirmation policy also has caused SPP Students to change their behavior with respect to their use of restrooms. After repeatedly encountering Student A in restrooms, some SPP Girls used the restroom as infrequently as possible, putting themselves at risk of urinary tract infections, dehydration and constipation. Some SPP Girls used the restroom during class time to reduce the risk of encountering a member of the opposite sex in a restroom. Thus, those students lose instructional time in class.

Based on these allegations, plaintiffs seek relief for alleged violations of Title IX (Count I), the Due Process Clause of the Fourteenth Amendment to the United States Constitution (Count II), the fundamental right of parents to direct the upbringing of their children (Count III), the Illinois...