Students and Parents for Privacy et al v. United States Department of Education et al
Filing
191
MEMORANDUM Opinion and Order: For the reasons discussed in the accompanying Memorandum Opinion and Order, Plaintiffs' objections 146 to the Report and Recommendation of the Magistrate Judge 134 are overruled and the Report and Recommendation is adopted. Plaintiff's Motion for a Preliminary Injunction 21 is denied. Plaintiffs' Motion for Leave to Supplement the Record 186 is granted. Defendants shall answer or otherwise respond to Plaintiffs' complaint by January 30, 2018. A status hearing is set for February 8, 2018 at 9:30 a.m. See Memorandum Opinion and Order for further details. Signed by the Honorable Jorge L. Alonso on 12/29/2017. Mailed notice(ep, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STUDENTS AND PARENTS FOR
PRIVACY, a voluntary unincorporated
association; C.A., a minor, by and through her
parent and guardian, N.A.; A.M., a minor, by
and through her parents and guardians S.M.
and R.M.; N.G., a minor, by and through her
parent and guardian R.G.; A.V., a minor, by
and through her parents and guardians T.V.
and A.T.V.; and B.W., a minor, a minor, by
and through his parents and guardians, D.W.
and V.W.,
Plaintiffs,
Case No. 16-cv-4945
Judge Jorge L. Alonso
v.
UNITED STATES DEPARTMENT OF
EDUCATION; JOHN B. KING, JR., in his
official capacity as United States Secretary of
Education; UNITED STATES
DEPARTMENT OF JUSTICE, LORETTA E.
LYNCH, in her official capacity as United
States Attorney General, and SCHOOL
DIRECTORS OF TOWNSHIP HIGH
SCHOOL DISTRICT 211, COUNTY OF
COOK AND STATE OF ILLINOIS,
Defendants.
and
STUDENTS A, B, AND C, by and through
their parents and guardians, Parents A, B, and
C; and the ILLINOIS SAFE SCHOOLS
ALLIANCE,
Intervenors-Defendants
MEMORANDUM OPINION AND ORDER
For the following reasons, Plaintiffs’ objections [146] to the Report and Recommendation
of the Magistrate Judge [134] are overruled and the Report and Recommendation is adopted.
1
Background
Plaintiffs, Students and Parents for Privacy, an unincorporated association, and five
current or prospective students of Township High School District 211, brought this action against
the United States Department of Education, the United States Department of Justice (together
with the Secretary of Education and the Attorney General collectively, “the Federal
Defendants”), and the School Directors of Township High School District 211 (“District 211” or
“the District”) challenging the District’s policy of allowing transgender students to use the
restrooms consistent with their gender identity, a federal rule requiring schools in the United
States to allow students to use sex-segregated facilities consistent with their gender identity, and
an agreement that the Department of Education had entered into with District 211 by which
Student A, a transgender girl, was allowed to use the girls’ locker room at William Fremd High
School.
[Dkt 1.]
Plaintiffs alleged that the Department of Education had violated the
Administrative Procedure Act, 5 U.S.C. § 500, et seq., in issuing the rule, and that the policy and
the agreement violate Girl Plaintiffs’1 rights to privacy and to an equal education. Plaintiffs also
brought claims for violation of their parental right to direct the education and upbringing of their
children, the Illinois and Federal Religious Restoration Act, and the Free Exercise of the First
Amendment.
The factual background of the case is laid out in great detail in the Magistrate
Judge’s Report and Recommendation, and is not repeated here. [Dkt 134.]
Plaintiffs moved for a preliminary injunction seeking to require the District to segregate
restrooms and locker rooms on the basis of students’ biological sex which Plaintiffs consider to
be sex assigned at birth, by enjoining the federal rule, enjoining the District’s policy, and
enjoining the agreement regarding Student A. [Dkt 21.] The motion was premised on Plaintiffs’
1
For convenience and consistency, the Court adopts the terms Plaintiffs use to describe
themselves, like “Girl Plaintiffs” and “Student Plaintiffs.”
2
Administrative Procedure Act claim, their constitutional privacy claim, and their claim under
Title IX (Counts I, II, and IV). Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure,
the motion was referred to the Magistrate Judge for a report and recommendation. [Dkt 24, 26.]
Shortly after Plaintiffs filed their motion, District 211 sought leave to conduct discovery
on it. Plaintiffs successfully opposed the District’s efforts, arguing that their claims rested on a
facial challenge and not on any specific interaction in any particular restroom or locker room
between any plaintiff and Student A or anyone else, but only on the fact that Student A, who
Plaintiffs call a biological boy, is or could be present in the girls’ restroom and locker room.
[Dkt 50 at 4-5.]
During oral argument on the motion, Plaintiffs narrowed the scope of their
requested relief from enjoining the federal rule outright to only asking that the Federal
Defendants be enjoined from “further application of the rule to force District 211 to comply with
it in the operation of its facilities.” [Dkt 127 at 155.]
Also during the pendency of the motion, Student A, along with Students B and C, by and
through their parents and legal guardians, and the Illinois Safe Schools Alliance, were allowed to
intervene in the case. [Dkt 56.]
After extensive briefing and oral argument, the Magistrate Judge issued a comprehensive
and well-reasoned report in which he recommended denying Plaintiffs’ motion upon a finding
that they had not made any of the threshold showings for a preliminary injunction. [Dkt 134.]
Specifically, he found that Plaintiffs had failed to demonstrate a likelihood of success on the
merits that the Administrative Procedure Act had been violated, that the District or the Federal
Defendants were violating Plaintiffs’ constitutional right to privacy, or that the District was
violating Title IX by permitting transgender students to use restrooms consistent with their
gender identity and allowing Student A to use the girls’ locker room. Even if Plaintiffs had
3
shown a likelihood of success on the merits, the Magistrate Judge found, they still would not be
entitled to an injunction because they had not shown they were likely to suffer irreparable harm
or that they lacked an adequate remedy at law. Because he found that the Plaintiffs had not made
the threshold showings necessary for an injunction to issue, the Magistrate Judge found it
unnecessary to engage in a balancing analysis. Plaintiffs object to the Magistrate Judge’s
decision, and the parties have submitted briefs detailing their respective positions.
While the objections were pending, several significant developments occurred,
substantially narrowing the scope of the parties’ dispute. First, Student A graduated from Fremd
High School and the Locker Room Agreement pertaining to her was accordingly terminated.
[Dkt 185-1.] Second, the United States Department of Education Office for Civil Rights and the
United States Department of Justice Civil Rights Division withdrew the administrative guidance
that Plaintiffs had challenged in this action, and issued a joint guidance letter instructing that the
views conveyed in the earlier materials should not be relied upon while the issue is under further
consideration. [Dkt 165-1.] In light of the withdrawal of those materials, Plaintiffs voluntarily
dismissed the Federal Defendants, thereby eliminating their Administrative Procedure Act claim,
and mooting much of their motion and objections to the Magistrate Judge’s Report and
Recommendation. [Dkt 178, 179.]
Standard of Review
When a party raises specific objections to a portion of a Magistrate Judge’s report and
recommendation, “[t]he district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). “The district judge
may accept, reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.” Id.
4
Discussion
A preliminary injunction is an extraordinary remedy that is available only when the
movant shows clear need. See Turnell v. Centimark Corp., 796 F. 3d 656, 661 (7th Cir. 2015).
A two-step inquiry applies when determining whether such relief is required. Id. First, the party
seeking the preliminary injunction must make a threshold showing that: (1) absent preliminary
injunctive relief, it will suffer irreparable harm in the interim prior to a final resolution; (2) there
is no adequate remedy at law; and (3) the party has a reasonable likelihood of success on the
merits. See id. at 661–62. If the movant makes the required threshold showing, then the court
proceeds to a balancing analysis in which it considers: (4) the irreparable harm the moving party
will endure if the preliminary injunction is wrongfully denied versus the irreparable harm to the
nonmoving party if it is wrongfully granted; and (5) the effects, if any, that the grant or denial of
the preliminary injunction would have on nonparties (the “public interest”). See id. at 662. “The
court weighs the balance of potential harms on a ‘sliding scale’ against the movant’s likelihood
of success: the more likely he is to win, the less the balance of harms must weigh in his favor;
the less likely he is to win, the more it must weigh in his favor.” Id. at 662.
Given the developments since the issuance of the Magistrate Judge’s opinion, only a
portion of Plaintiffs’ claims remain at issue.
Because the Federal Defendants have been
dismissed, Plaintiffs’ motion as to the federal rule embodied in the guidance documents is now
moot. Likewise, because Student A has graduated and the Locker Room Agreement has been
terminated, this aspect of Plaintiffs’ claims is also moot. See City of Los Angeles v. Lyons, 461
U.S. 95, 102 (1984) (“Past exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if unaccompanied by any continued, present adverse
effects” (internal quotation omitted); Young v. Lane, 922 F.2d 370, 373-74 & n. 8 (plaintiffs
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request for injunctive relief on exercise of religion claim mooted by transfer from prison facility
where challenged restrictions occurred). Plaintiffs resist this result by pointing to Intervenor
Parent B’s declaration that Student B may want to use a District 211 locker room consistent with
his gender identity [dkt 32-2], and a recently filed charge of discrimination brought by a
transgender student who was denied access to the locker room consistent with her gender identity
at a District 211 school [dkt 186-1]. 2 The fact that other transgender students want or might
want to use sex-segregated facilities consistent with their gender identity, however, neither
suggests that the injury of which Plaintiffs complained is continuing or that the injury
complained of will be repeated. In any event, even if it could be said that Plaintiffs challenge to
the Locker Room Agreement remains live, the Magistrate Judge correctly determined that
Plaintiffs had not shown a reasonable likelihood of success on the merits that allowing
transgender students access to sex-segregated facilities based on their gender identity violates
Title IX or the privacy rights of the Student Plaintiffs with whom such facilities are shared,
whether such facilities are restrooms or locker rooms.
With certain exceptions, Title IX provides:
No person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial assistance . . . .
20 U.S.C. § 1681(a). Because Title IX allows an educational institution to provide “separate
toilet, locker room, and shower facilities on the basis of sex,” so long as they are “comparable to
such facilities provided for students of the other sex,” 34 C.F.R. § 106.33, Plaintiffs say, a policy
that allows a transgender student access to sex-segregated facilities based on their gender identity
improperly hinders non-transgender students’ equal access under Title IX and burdens their
2
Plaintiffs’ motion to supplement the record with this charge of discrimination [dkt 186] was
taken under advisement, and is hereby granted.
6
privacy rights by forcing them to seek privacy protections other than in those facilities.
According to Plaintiffs, District 211’s actions create a sexually hostile environment for Girl
Plaintiffs and negatively impact their access to educational opportunities, benefits, programs, and
school activities because Girl Plaintiffs are scared, worried, or embarrassed about the possibility
of being seen or heard by a transgender student while using the separate restrooms Title IX’s
implementing regulations specifically allow. Plaintiffs assert that the Magistrate Judge erred in
finding the use of the term “sex” ambiguous in Title IX, thereby sanctioning an interpretation of
sex that includes gender identity. Plaintiffs heavily premised the arguments supporting their
motion and objections on Ulane v. Eastern Airlines Inc., 742 F.2d 1081 (7th Cir. 1984), a
Seventh Circuit decision denying a cause of action for discrimination on the basis of
transsexualism upon a finding that Congress intended a narrow interpretation of the term “sex” in
Title VII. [See dkt 23, 146.] Embracing that rationale, Plaintiffs insist Title IX does not require
the provision of facilities consistent with a transgendered student’s gender identity, because
“sex” means only the “binary, objectively verifiable” markers of a sexually reproducing species
i.e., “our ‘privates.’” [E.g., dkt 146 at 3-4.]
As the Magistrate Judge correctly recognized, however, and as the Seventh Circuit has
since conclusively held, federal protections against sex discrimination are substantially broader
than based only on genitalia or chromosome. In Price Waterhouse v. Hopkins, 490 U.S. 228
(1989), the Court held that discrimination based on sex stereotypes is cognizable under Title VII.
See Price Waterhouse, 490 U.S. at 242 (finding Title VII was “intended to strike at the entire
spectrum of disparate treatment of men and women resulting from sex stereotypes”). In Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), the Court reiterated an expansive
approach to Title VII, declaring, “statutory prohibitions often go beyond the principal evil to
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cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the
principal concerns of our legislators by which we are governed.” Oncale, 523 U.S. 79 (finding
Title VII prohibits same-sex sexual harassment regardless of intent even though it was not the
principal concern of Congress when it enacted the statute).
Based in part on these authorities, courts around the country have declined to follow the
reasoning of Ulane in the three decades since its release. See, e.g., Glenn v. Brumby, 663 F.3d
1312, 1317 & n. 5 (11th Cir. 2011) (noting Price Waterhouse eviscerated Ulane’s reasoning, and
finding “discrimination against a transgender individual because of her gender-nonconformity is
sex discrimination”); Smith v. City of Salem, 378 F.3d 566, 570 (6th Cir. 2004) (recognizing
transgender plaintiff’s sex-stereotyping claim since Price Waterhouse established Title VII’s
reference to ‘sex’ “encompasses both the biological differences between men and women, and
gender discrimination, that is, discrimination based on a failure to conform to stereotypical
gender norms”); Rosa v. Park W. Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000) (recognizing
claim under Equal Credit Opportunity Act based on sex-stereotyping); Schwenk v. Hartford, 204
F.3d 1187, 1199-1203 (9th Cir. 2000) (applying Price Waterhouse to recognize transsexual
plaintiff’s Gender Motivated Violence Act claim).
Moreover, while the objections were pending, the Seventh Circuit twice rejected the
narrow interpretation of “sex” that Plaintiffs forward here. In Hively v. Ivy Tech Cmty. College
of Indiana, 853 F.3d 339 (7th Cir. 2017) (en banc), the court held that plaintiff stated a
“paradigmatic sex discrimination” claim by alleging her employer had failed to promote her
because she was a lesbian. Id. at 345. Applying Price Waterhouse and its progeny, the Seventh
Circuit reasoned, “Any discomfort, disapproval or job decision based on the fact that the
complainant – woman or man – dresses differently, speaks differently, or dates or marries a same
8
sex partner, is a reaction purely and simply based on sex. That means it falls within Title VII’s
prohibition against sex discrimination, if it affects employment in one of the specified ways.” Id.
at 347.
In Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Education, 858
F.3d 1034 (7th Cir. 2017), the Seventh Circuit similarly applied a theory of sex stereotyping to
find that Title IX’s prohibition on sex discrimination prohibits treating a transgender student
differently than non-transgender students. In Whitaker, a transgender student alleged that a
policy barring him from using the boys’ restroom after he started his female-to-male transition
violated Title IX and the Equal Protection Clause of the Fourteenth Amendment. Id. at 1039.
The District Court agreed, granting him injunctive relief, and the Seventh Circuit affirmed. Id.
Rejecting arguments similar to those forwarded by Plaintiffs here, the Seventh Circuit found that
a school policy that subjects a transgender student to different rules, sanctions, and treatment
than non-transgender students violates Title IX. Id. at 1049-50.
The Seventh Circuit made clear in Whitaker that its earlier decision in Ulane could not
“foreclose . . . transgender students from bringing sex-discrimination claims based upon a theory
of sex-stereotyping as articulated . . . in Price Waterhouse.” Id. at 1047 (internal citation
omitted).
Discrimination against transgender individuals is sex discrimination under Price
Waterhouse, the Seventh Circuit explained, because “[b]y definition, a transgender individual
does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.”
Id. at 1048. Following Price Waterhouse and its progeny, the Court reasoned that a “policy that
requires an individual to use a restroom that does not conform with his or her gender identity
punishes that individual for his or her gender non-conformance which in turn violates Title IX.”
Id. at 1049. Providing a gender-neutral alternative was insufficient to relieve the school district
9
from liability under Title IX, the Seventh Circuit explained, because it was “the policy itself
which violates the Act.” Whitaker, 858 F.3d at 1050.
Although the arguments considered in Whitaker mirror those made by Plaintiffs here,
Plaintiffs try to distinguish Whitaker as only “superficially similar” since it only involved
restroom access, and insist that the decision is so “astonishingly wrong” that its reasoning
undercuts its “worth even as persuasive authority.” [Dkt 180 at 5, 16, 19.] Even if locker room
access were still a live issue, however, it provides no logical basis to so distinguish Whitaker’s
rule. Nothing in the Seventh Circuit’s analysis suggests that restrooms and locker rooms should
be treated differently under Title IX or that the presence of a transgendered student in either,
especially given additional privacy protections like single stalls or privacy screens, implicates the
constitutional privacy rights of others with whom such facilities are shared. Plaintiffs’ critiques
notwithstanding, Whitaker reflects a straightforward application of the long-standing line of sex
stereotyping decisions, fully in line with the Supreme Court’s guidance on sex discrimination
claims.
The fact that Plaintiffs premised their action in part on certain Student Plaintiffs’
complaints about the District’s policy whereas in Whitaker the school district defended their
policy on similar privacy claims on behalf of non-party students also does not distinguish the
cases. This is clear from Plaintiffs’ continued assertion of the arguments rejected in Whitaker,
and their attacks on the Seventh Circuit’s reasoning. [See dkt 180 (calling the school district’s
defense of its policy “proper,” and “sound,” and the Seventh Circuit’s decision replete with
“numerous errors” rendering it “incorrect as a matter of law”).]
Plaintiffs’ challenge
notwithstanding, Whitaker nevertheless controls and confirms that the Magistrate Judge was
correct in his assessment of Plaintiffs’ Title IX claim. See Reiser v. Residential Funding Corp.,
10
380 F.3d 1027, 1029 (7th Cir. 2004) (“In a hierarchical system, decisions of a superior court are
authoritative on inferior courts.”)
The Seventh Circuit’s decision in Whitaker also makes clear that the Magistrate Judge
correctly determined that Plaintiffs had not established a likelihood of success on their
constitutional privacy claim. Although initially framed even more broadly, Plaintiffs ultimately
posed their privacy claim on the motion as whether “letting a biological male use the girls’
locker room and restrooms, and so subjecting Girl Plaintiffs to the risk of compelled exposure of
their bodies to the opposite biological sex, violate Girl Plaintiffs’ constitutional right to privacy?”
[Dkt 50 at 6.] While the Supreme Court has not recognized a generalized right to privacy, it has
extended substantive due process protection of privacy interests in certain limited circumstances.
See, e.g., Lawrence v. Texas, 539 U.S. 558, 577-78 (2003) (recognizing individual decisions
about physical intimacy are a form of liberty protected by Due Process Clause of Fourteenth
Amendment); Roe v. Wade, 410 U.S. 113, 153 (1973) (right to privacy “found in the Fourteenth
Amendment’s concept of personal liberty . . . is broad enough to encompass a woman’s decision
whether or not to terminate her pregnancy”). The Supreme Court and the Seventh Circuit have
both cautioned that “the scope of substantive due process is very limited.” Belcher v. Nelson,
497 F.3d 742, 753 (7th Cir. 2007) (citing Washington v. Glucksburg, 521 U.S. 702 (1997)).
In a substantive due process analysis, the court requires a careful description of the
asserted interest at issue. See Christensen v. Cnty of Boone, 483 F.3d 454, 462 (7th Cir. 2007).
It must then be determined whether the asserted interest is “fundamental,” or whether “it is so
deeply rooted and sacrosanct that no amount of process would justify its deprivation.” Id. at 462.
Finding that Plaintiffs’ formulation of the issue overstated the actual interest they seek to
vindicate, the Magistrate Judge more narrowly framed the issue as whether “high school students
11
have a constitutional right not to share restrooms or locker rooms with transgender students
whose sex assigned at birth is different from theirs?” [Dkt 134 at 45.]
Plaintiffs’ objection to this formulation as having ignored the privacy implications of
“comingling the sexes” and their insistence that giving a transgender student access to the
restrooms of the sex with which she or he identifies serves only to “affirm” a transgender
student’s perception of himself, while violating Student Plaintiffs’ constitutional right to privacy,
flies in the face of Whitaker. The school district in Whitaker unsuccessfully defended its policy
with the same argument as Plaintiffs advance here, i.e., that allowing transgender students access
to restrooms based on their gender identity infringes on the privacy rights of other students with
whom they do not share biological anatomy. [Dkt 180 at 1 (discussing Whitaker, 858 F.3d at
1052).] The Court here is similarly unpersuaded. This case does not involve the forced or
extreme invasions of privacy that the courts addressed in the cases cited by Plaintiffs. Further,
the restrooms at issue here have privacy stalls that can be used by students seeking an additional
layer of privacy, and single-use facilities are also available upon request. [Dkt 78-1.]
Given
these protections, there is no meaningful risk that a student’s unclothed body need be seen by
any other person.
Further, Plaintiffs’ assumption that the development of additional facts in Whitaker
would have changed its outcome is belied by the rationale of the Seventh Circuit’s decision.
There is no suggestion in Whitaker that undeveloped facts were outcome-determinative. Rather,
the Court rejected as unsound parallel privacy arguments as those asserted here, observing:
A transgender student’s presence in the restroom 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
performing bodily functions. Or for that matter, any other student who uses the
bathroom at the same time. Common sense tells us that the communal restroom is
12
a place where individuals act in a discreet manner to protect their privacy and
those who have true privacy concerns are able to utilize a stall.
858 F.3d at 1052. Further, their current argument notwithstanding, Plaintiffs made clear that
their challenge to District 211’s policy was not based on any individual complaints but was
instead a facial one. As Plaintiffs put it in resisting the District’s efforts to obtain discovery and
as they repeat despite their argument in their most recent briefs, Plaintiffs frame the issue in this
action as whether “the District 211 Defendants’ official, intentional intermingling of the sexes
within privacy facilities violates the constitutional right to bodily privacy and provisions of Title
IX.” [Dkt 185 at 6.]
Similarly unpersuasive is Plaintiffs’ emphasis on the dissent’s reasoning in the Fourth
Circuit’s G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., a decision regarding a transgender
student’s access to sex-segregated facilities and the fact that the Supreme Court recalled the
mandate and stayed an injunction there pending the filing and disposition of a writ of certiorari.
See G.G. ex rel. Grimm, 822 F.3d 709 (4th Cir. 2006), mandate recalled and stayed, Gloucester
Cty. Sch. Bd. v. G.G. ex rel. Grimm, 136 S. Ct. 2442 (2016), cert. granted, No. 16-273 (Oct. 28,
2016). Whitaker is binding on this Court, and the stay in G.G. only preserved the status quo. It
does not create a privacy right of the nature that Plaintiffs assert.
At the time the Magistrate Judge rendered his decision, the law in the Seventh Circuit
was in flux. Plaintiffs’ protestations notwithstanding, it is now clear, and binding. See Reiser,
380 F.3d 1029; Matter of Skupniewitz, 73 F.3d 702, 705 (7th Cir. 1996). For the reasons
discussed by the Magistrate Judge and herein, Plaintiffs have not carried their burden of
establishing a reasonable likelihood of success on either their Title IX or their constitutional
privacy claims.
13
Further, even if Plaintiffs had shown a likelihood of success on the merits, they would
still not be entitled to a preliminary injunction because they have not shown they are likely to
suffer irreparable harm in the absence of an injunction, or that they lack an adequate remedy at
law in the event that they ultimately succeed on their claims. Both before the Magistrate Judge
and in their objections, Plaintiffs argue that irreparable harm may be presumed if they establish a
likelihood of success on their constitutional claim, and that they will suffer such harm if they are
denied access to “truly private girls’ locker rooms and bathrooms.” [Dkt 23 at 35, 146 at 36.]
But Plaintiffs have not established a likelihood of success either on their constitutional privacy or
their Title IX claims, and the only specific harm to which they point is the risk of running late to
class by using alternate restrooms to avoid sharing with a transgender student and the
“embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation, and loss of
dignity” allegedly felt by Student Plaintiffs arising from such sharing. [Dkt 1 ¶ 11.] As the
Magistrate Judge correctly found, the mere inconvenience of using remote facilities does not
constitute irreparable harm, the risk of being late to class has not been shown to have any
meaningful impact on Student Plaintiffs’ education, and the emotional damages of which
Plaintiffs complain are commonly compensated by monetary awards. See Bhd. of Locomotive
Engineers & Trainmen v. Union Pacific R.R. Co., No. No. 10 C 8296, 2011 WL 221823 at *5
(N.D. Ill. Jan. 21, 2011).
Notably, District 211’s practice of allowing transgender students to use the restrooms of
the gender with which they identify was implemented nearly three years before the filing of this
action.
As the Magistrate Judge observed, either Student Plaintiffs did not notice that
transgender students were using restrooms consistent with their gender identity, or they knew
and tolerated it for several years. The passage of time therefore further undermines Plaintiffs’
14
claim of irreparable harm. This Court agrees with the Magistrate Judge’s assessment, “[t]here is
no indication that anything has negatively impacted Girl Plaintiffs’ education.” [Dkt 134 at 76.]
Because the Magistrate Judge correctly found that Plaintiffs had not made any of the
threshold showing required for a preliminary injunction to issue, Plaintiffs’ objections to the
Report and Recommendation are overruled, and their Motion for a Preliminary Injunction is
denied.
CONCLUSION
For all of the above mentioned reasons Plaintiffs’ objections [146] to the Report and
Recommendation of the Magistrate Judge [134] are overruled and the Report and
Recommendation is adopted. Plaintiff’s Motion for a Preliminary Injunction [21] is denied.
Plaintiffs’ Motion for Leave to Supplement the Record [186] is granted. Defendants shall
answer or otherwise respond to Plaintiffs’ complaint by January 30, 2018. A status hearing is set
for February 8, 2018 at 9:30 a.m.
Date: 12/29/2017
Jorge L. Alonso
United States District Judge
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