Court Rejects Claim That Allowing Allegedly Biologically Male Student in Girls' Restroom Violates Equal Protection Clause and Title IX
From F.F. v. Valley View Comm. Unit School Dist. 365U, decided Monday by Judge Sharon Johnson Coleman (N.D. Ill.):
Plaintiff is an 18-year-old female who was previously enrolled at Bolingbrook High School. On November 4, 2024, at around 10:00 a.m., Plaintiff entered a girls' multi-use restroom labeled "girls' bathroom." After using and exiting a stall, Plaintiff observed a transgender student, who she was familiar with, dressed in "male-typical clothing … with no visible indication of female identity," standing in close proximity to her stall. Plaintiff feared that the student could have seen her undergarments or her exposed body through small spaces on either side or under the stall door. While Plaintiff does not allege any facts indicating the student actually saw or tried to see her exposed body, Plaintiff claims to have been "triggered" and to have experienced "intense feelings of anxiety, discomfort, and shame" from the mere possibility of being exposed.
On November 6, 2024, Plaintiff described the incident to her father, Mr. Fisher. The following day, Mr. Fisher sent a text message to the School's principal, Dr. Pascavage, to report the incident and raise concerns about Plaintiff's privacy. Dr. Pascavage responded that the transgender female student had been granted access to the girls' restroom pursuant to an Individual Development Plan, or formal plan outlining the student's gender-identity accommodations. To address Plaintiff's privacy concerns, Dr. Pascavage offered Plaintiff access to single-use staff restrooms.
During an in-person meeting with Mr. Fisher on November 12, 2024, Dr. Pascavage further elaborated that the School followed Illinois Department of Human Rights ("IDHR") guidance, titled "Guidance on Protection of Students in Illinois: A Non-Regulatory Guidance Relating to Protection of Transgender, Nonbinary, and Gender Nonconforming Students." The 2021 IDHR publication provides guidelines on complying with the Illinois Human Rights Act, "in the context of a school setting, with specific focus on how the IHRA protects the rights of transgender, nonbinary, and gender nonconforming individuals." In relevant part, the publication states:
Use of restrooms, locker rooms and changing rooms may not be restricted based upon a student's physical anatomy or chromosomal sex. A student must be permitted to access restrooms or bathrooms, locker rooms and changing rooms that align with their gender-related identity and without having to provide documentation or other proof of gender.
Under the Act, the discomfort or privacy concerns of other students, teachers, or parents are not valid reasons to deny or limit the full and equal use of facilities based on a student's gender-related identity. Instead, any student, teacher or other individual seeking more privacy should be accommodated by providing that individual a more private option upon their request, if possible. The prejudices of others are part of what the [Act] was meant to prevent. [T]here is no right that insulates a student from coming in contact with others who are different.
During continued communication with Dr. Pascavage throughout November 2024, Mr. Fisher expressed frustration with the School's policy and complained that the School's offer to allow Plaintiff's use of an alternative facility would not sufficiently address the issue.
On December 9, 2024, at a public meeting of the School District's Board of Education, Mr. Fisher raised the issue of transgender students having access to the girls' restrooms, drawing attention to gaps on the sides and below stall doors that render the interior of the stall partially visible from outside. In response to Mr. Fisher's concerns about the stall design, between December 20, 2024, and January 6, 2025, the School installed rubber strips and other opaque material on the toilet stalls in the girls' restrooms.
In January 2025, Plaintiff attempted to use the staff restroom in the School's library. Plaintiff alleges, however, that she was denied access to the staff restroom by the librarian. Discouraged, Plaintiff took deliberate care to use other girls' restrooms in the School as far away as possible from the one where the initial "incident" occurred. Further, Plaintiff used these girls' restrooms only during class hours, which she alleges, led to her losing classroom instruction time, disrupted her routine, heightened her unease, and diminished her sense of safety at the School. She further claims that this fear caused her to skip restroom visits, which Plaintiff states was "especially unsettling" during the days she had her period.
Plaintiff does not allege, however, any facts indicating that the transgender girl in question made any efforts to view her through the stall or otherwise invade her privacy. Plaintiff also does not allege that she confirmed or investigated the gender identity of any other girls she encountered in the restroom outside of the transgender girl from the initial "incident." …
The court rejected plaintiff's claim that the school had violated the Equal Protection Clause:
Plaintiff alleges Defendants' policy of allowing "male students" access to the School's female-only spaces based solely on their "self-declared gender preferences," subjects female students to privacy violations and discrimination on the basis of sex, constituting an equal protection violation….
Sex-based discrimination turns on whether conduct is permitted for one sex that is denied for the other. Plaintiff cannot claim that a policy that treats the sexes identically, discriminates on the basis of sex. As alleged in her Complaint, the District follows the IDHR's guidance on bathroom access, which confirms "[a] student must be permitted to access the restrooms or bathrooms, locker rooms and changing rooms that align with their gender identity." Thus, on its face, the School's Policy allows all students, regardless of their sex, access to the bathroom that aligned with their gender-identity. All students, Plaintiff included, are allowed access to the restroom that aligns with their gender identity, not just transgender girls; any other interpretation would ignore the fact that transgender boys, cisgender boys, cisgender girls, and gender nonconforming students are all guaranteed the same accommodations as transgender girls. Plaintiff fails to overcome the clear implication that all sexes are treated equally under the policy, and are given the exact same bathroom access.
Importantly, the Supreme Court recently cautioned courts from finding sex-based discrimination in the absence of unequal treatment, as Plaintiff requests. In U.S. v. Skrmetti (2025), the Supreme Court found that a law prohibiting certain medical treatments for transgender minors was not subject to heightened scrutiny because the application of the statute relied on age and a medical procedure, rather than sex, and did not prohibit conduct for one sex that it permitted for the other. Here, Defendants' Policy, similarly, does not prohibit conduct for one sex that it permits for the other, since ALL students are permitted to use the restroom that aligns with their gender identity. Taking all of Plaintiff's well-pled facts as true, there is no discrimination on the basis of sex….
The court also rejected plaintiff's Title IX claim:
Plaintiff alleges that the District creates a hostile educational environment by subjecting female students to the constant risk of encountering "males" in supposedly female-only restrooms, locker rooms, and showers, causing pervasive anxiety, humiliation, distress, and disruption of their education. Plaintiff further alleges that requiring her to potentially miss instruction time to access private restrooms impaired her ability to focus on her education.
Title IX protects individuals from sex-based discrimination and provides that no person "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance […]"A hostile-environment claim under Title IX requires allegations that conduct is severe, pervasive, and objectively offensive such that it denies equal educational access….
Again, Plaintiff[']s failure to identify any sex-based discrimination, dooms her claim. Plaintiff has not shown that Defendants' policy violates Title IX since its policy guarantees all students equal rights provided under the statute. Despite not making this showing, Plaintiff actually seeks to subject the District to further Title IX liability, by asking the Court to order a policy that relies on sex-based stereotypes—primarily the way a student "behaves, walks, talks, or dresses"—which is definitively unlawful in the Seventh Circuit. That Plaintiff asks the Court to improperly rely on sex stereotypes is evidenced by Plaintiff's insistent assertion that the student in question should be prohibited from using the girls' bathrooms for failing to "exhibit" any "outward appearance or other indication of presenting as female," as well as by her counsel's oral argument suggesting the transgender student's "male clothing" and "baggy clothes" "obviously" meant she could not identify as female—despite baggy clothes being a common style worn by teenagers across all genders.
Additionally, Plaintiff's argument that Title IX actually mandates sex-segregated spaces is wholly unsupported. Plaintiff argues that the recognition of sex-segregated spaces in both federal statutes and interpreting cases vests affirmative statutory requirements to provide Plaintiff with the relief she requests. Plaintiff fails to acknowledge, however, the discretionary language contained in Title IX, which explicitly states "[n]othing contained in this chapter shall be construed to prohibit any educational institution receiving funds under this Act from maintaining separate living facilities for the different sexes." The Department of Education's implementing regulations further state that school's "may provide separate toilet, locker room, and shower facilities on the basis of sex" so long as they are comparable.
The statute clearly provides schools with the option to maintain sex-separate facilities, but by no means requires schools to do so. Plaintiff seeks to recharacterize plainly discretionary language to mandate that Defendants exclude transgender students from the restroom matching their gender identity, despite no such mandate….
Finally, Plaintiff asks the Court to determine what effect, if any, the Supreme Court's June 30, 2026, decision in Virginia v. B.P.J., has on its present ruling. In B.P.J., the Supreme Court determined states may maintain separate women's and men's sport teams based on "biological sex." Plaintiff argues, B.P.J.'s determination that "sex" in Title IX be understood to mean only "biological sex" bears directly on the merits of her claims since Defendants "fail[ ] to segregate the sexes at all" "with female students bearing the entire burden of this failure."
The Court's decision is not impacted by B.P.J., however, because the Supreme Court explicitly limited its decision to the sports context. See (slip op. at 14) ("the only question here is whether schools may limit women's and girls' sports to biological females."). Furthermore, even if the decision in B. P. J were applicable in this context, which it is not, it only holds that states may maintain separate sports teams based on biological gender, it does not hold that states are required to do so. Finally, any clarification outlined in B. P. J still does not resolve Plaintiff's threshold failure to allege that she or any other student was treated differently or provided a lesser facility based on sex, biological or otherwise, because Defendants' Policy is applicable to all genders and not exclusionary of any….
Alexander Thomas Myers, Darcy L. Proctor, and John M. O'Driscoll (Tressler LLP) represent the school district.