School Ban on Transgender Teen Using Boys' Locker Room Hinders 'Social Transitioning,' Judge Rules

Max Brennan
Max Brennan |

A federal judge stated Monday that federal discrimination law should allow a Maryland transgender student to choose a locker room based upon gender identity rather than biological sex.

U.S. District Judge George L. Russell III said Monday that Title VII of the Civil Rights Act protects the rights of biological-female transgender student Max Brennan at St. Michaels Middle High School in Talbot County to use the boys' locker room and said that the student could suffer harm from the policy.

The ruling comes as the school's policy requires Brennan to change for PE class in one of three designated gender-neutral bathrooms, instead of in the boys' locker room. Brennan is represented by the American Civil Liberties Union and the Maryland pro-LGBT group Free State Justice.

Despite the judge ruling that such a federal right exists for Brennan and other transgender students, he did not issue an immediate injunction banning the school district from enforcing the policy.

Since Brennan is not currently enrolled in physical education classes this school year and won't be until next school year, the judge ruled that the harm that Brennan could suffer from the policy is not "actual and imminent."

Russell's decision will allow for both sides to come to a resolution before the 2018-2019 school year begins. Russell ordered both parties to confer and issue a proposed scheduling order by the start of the next school year.

The judge reasoned that barring the student from accessing the boy's locker room "interferes with his social transitioning." 

"First, unlike a boy who decides to change clothes in a single-use restroom or stall for greater privacy, barring M.A.B. from changing in the boys' locker room harms his health and well-being," the judges 40-page ruling explains. "M.A.B. has been diagnosed with gender dysphoria, whose treatment requires 'social transitioning.' This includes accessing single-sex spaces, like locker rooms, that align with his gender identity."

The other boys should use the single use restroom if they feel uncomfortable undressing in front of a biological female, the judge continued. 

"[School policy] requires M.A.B. to change his clothes in the designated restrooms, against his doctor's medical advice, and M.A.B. risks discipline if he does not comply," the ruling explains. "Conversely, boys who have privacy concerns have the option of changing clothes in a single-use restroom or stall if they want greater privacy."

Although the school district argued that keeping Brennan from changing in the boys' locker room protects the privacy rights of male students, the judge argued that banning the student from changing clothes "does nothing to protect the privacy rights" of other students at the high school.

"[Brennan's] presence in the boys' locker room 'provides no more of a risk to other students' privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates' while they change their clothes," the judge stated, citing the 2016 federal court ruling in Whitaker v. Kenosha Unified School District.

The judge justified his argument by citing recent federal court rulings, such as the one last year striking down President Donald Trump's ban on transgender military service members.

The judge also cited a federal appeals court's ruling last week that a Christian funeral home discriminated against a transgender employee when dismissing the worker for wearing female clothing.

Russell explained that his conclusion is "in accord" with the rulings of the United States Court of Appeals for the First, Sixth, Ninth, and Eleventh circuits.

"[Those courts] have all recognized that claims of discrimination on the basis of transgender status is per se sex discrimination under Title VII or other federal civil rights laws," the decision reads.

Brennan praised the ruling in a statement shared by Free State Justice.

"I am extremely happy with the court's decision, and think it is a great step in the right direction," he said. "I am hopeful that this case will not only help change policy for the better, but help the students who are bound to come after me."

The decision was also celebrated by LGBT groups all over the country.

Russell's reliance on Title VII is similar to the Obama-era interpretations of the law.

The Obama administration issued a guidance in 2016 that was later reversed by the Trump administration in 2017 instructing schools to allow transgender students to use restrooms and locker rooms consistent with their gender identity.

The administration held that rules preventing students from using bathrooms corresponding with their gender identity violate Title VII. The administration had interpreted Title VII, which protects on the basis of sex, to also include gender identity.

The transgender school guidance was largely opposed by Christian conservatives and was later struck down by a federal judge in Texas during the last days of the Obama administration.

Last March, the United States Supreme Court remanded a similar case to Brennan's that featured a transgender high school student seeking to use the boys' bathroom in Virginia back to the lower court for reconsideration.

The U.S. Court of Appeals for the Fourth Circuit had previously relied on the Obama administration's 2016 guidance to side with the transgender student over his school district. However, since the guidance was rescinded by the Trump administration the case was remanded back to the Fourth Circuit.

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