Judge recommends against reversing District 211 transgender policy

Jeremy Tedesco, an attorney for Alliance Defending Freedom, speaks to the media in August after making his arguments for a preliminary injunction that would indefinitely suspend an agreement allowing a transgender student in Palatine-Schaumburg High School District 211 limited access to a girls locker room. A judge recommended against the granting of a preliminary injunction Tuesday. Eric Peterson/Daily Herald, August 2016

John Knight, director of the LGBT Project for the American Civil Liberties Union of Illinois, addresses the media in August after defending a Palatine-Schaumburg High School District 211 agreement with the U.S. Department of Education which grants a transgender student limited access to a girls locker room. A judge recommended against the granting of a preliminary injunction Tuesday. Eric Peterson/Daily Herald, August 2016

A federal magistrate judge has recommended against a preliminary injunction that would reverse Palatine-Schaumburg High School District 211's decision allowing a transgender student to use a girls locker room and restroom at Fremd High School in Palatine.

U.S. Magistrate Judge Jeffrey Gilbert's 82-page recommendation to District Judge Jorge Alonso comes more than two months after he heard verbal arguments for and against the request filed by a citizens group suing the school district and two federal agencies to overturn the decision.

Among his findings, Gilbert wrote that the plaintiffs had not shown they have a likelihood of success in the case, or that the U.S. Department of Education had violated federal law by requiring that schools permit transgender students to use restrooms and locker rooms consistent with their gender identity.

The lawsuit was filed in May by two religious freedom organizations -- Alliance Defending Freedom and the Thomas More Society -- on behalf of the local citizens group District 211 Students and Parents for Privacy.

The suit targets an agreement reached by District 211 and the federal departments allowing the transgender Fremd student limited use of a girls locker room.

"District 211 affirms and supports the identity of all its students and District 211 students have shown acceptance, support and respect for each other," school district attorney Sally Scott said in a written statement after Gilbert issued his recommendation.

"Since January, the district has implemented this agreement without any reports of incident or issue," she continued. "Today's recommended ruling means that the district can continue to provide locker room access for transgender students on a case-by-case basis. Further, it affirms the district's position that an injunction is unwarranted as there is no evidence of a hostile environment because of the locker room accommodations, and no invasion of students' constitutional rights to privacy."

Gary Caleb, senior counsel for Alliance Defending Freedom, said the plaintiffs still hope the district's decision will be overturned.

"School policies should protect the privacy and safety of all students, no matter who they are," Caleb said in a written statement. "Young students should not be forced into an intimate setting like a locker room with someone of the opposite sex. The court should exercise its authority to stop the (Department of Education) and (Department of Justice) from redefining federal law and violating the privacy of thousands of students."

The American Civil Liberties Union of Illinois won permission to intervene in the case because the organization represents the transgender student, named 'Student A' in court documents.

"Judge Gilbert's decision is welcome news, reducing some of the uncertainty experienced by our clients in this case," John Knight, director of the ACLU of Illinois' LGBT Project, wrote in a statement Tuesday. "Barring Student A and other transgender students from the restrooms and locker rooms that match their gender challenges their basic identity and humanity, suggests that they should be ashamed of who they are, and puts them at serious risk of long-term emotional and psychological injury. We are pleased that Judge Gilbert rejected specious arguments about privacy and protected the interests of all students."

Though Gilbert's document is a recommendation, ACLU spokesman Ed Yohnka said such recommendations by magistrate judges are traditionally upheld by the presiding judges.

The agreement between District 211 and the Department of Education allows the student -- who was born biologically male but identifies as female -- use of the girls locker room on the condition that she always use a privacy stall to change clothes. Multiple stalls were installed in the locker room for any student who wanted greater privacy.

Gilbert's recommendation states that any written objection or request for appeal must be filed within 14 days or the right to do so will be waived.

ADF spokesman Bob Trent said his agency is working on a response to be filed before Judge Alonso rules.