October 6, 2015

Superintendent Jeff Zander

Elko County School District
850 Elm St.
Elko, Nevada 89801
Fax: 775-783-5857
jzander@ecsdnv.net
Dear Superintendent Zander:
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Please be advised that I represent Michelle Gonzales, and her son, Student Doe, in
relation to their claims against the Elko County School District. Elko County School District is deliberately and continuously violating Does rights under Title IX, the Equal Protection Clause of the United States Constitution, Nevada public accommodation laws, Nevada anti-bullying laws, and Nevada privacy protections. Moreover, Elko County School
District is operating under a discriminatory policy which unconstitutionally denies
transgender students their civil rights.
As you are aware, the ACLU of Nevada previously wrote to inform you that any action
restricting Does access to gender-appropriate restrooms and locker rooms is a violation of
his civil rights. In spite of this knowledge, the Elko County School Board of Trustees unanimously voted to strip Doe of his federal, state and constitutional rights, and forced him to
use facilities which do not correspond with his gender identity.
The Boards actions dehumanize and degrade both Doe and all transgender youth. This
decision invites humiliation and harassment of transgender students at a time when they
are already at an increased risk of bullying in school. Does psychological well-being and
educational success depend on being treated as an equal to all other students this includes
being permitted to use the bathroom consistent with his gender identity.
Below is both a recitation of the facts as I currently understand them, and an analysis
of Does legal claims against you. I trust you will take swift action to remedy these ongoing
violations.

Student Doe is used in this letter as an attempt to preserve the privacy of the student at
issue. The Elko County School Board is already well aware of Student Does identity as it
specifically took action in regards to his bathroom usage, as described below. If, however,
you need further information to assess Student Does legal claims, please contact me directly.

I.

FACTS

Doe is a teenage transgender boy and attends a middle school in the Elko County
School District. In the spring of his fifth grade year, Doe decided to express his true gender
identity. He began dressing in male clothing, changed his name to a male-gendered name
and used male pronouns to identify himself. When Doe entered middle school the next
year he used neither male nor female restrooms, but used a third single-room bathroom in
the special education classroom.
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However, using this third bathroom segregated and shamed Doe it signaled to him
and others that he was different than all other students. Thus, as Doe entered his next year
of middle school, he decided he no longer wanted to be ostracized. Doe asked the school
if, like all other male students, he could use the boys bathroom. His request was denied.
Doe informed his mother that his request to be treated just like every other student was
unceremoniously denied. Understandably upset, Does mother contacted leadership at
Does middle school and advocated for his equal treatment. Does mother explained to the
school that as a transgender teenager, Does ability to use the restroom matching his gender
identity is extremely important to his emotional and mental health and his overall wellbeing. Does mother clarified that the use of an alternate bathroom was not acceptable; just
as all students are able to use either a single-sex or alternate bathroom, so should Doe She
made a formal request that the school not segregate Doe and allow him to use the boys
restroom.
Despite Mrs. Gonzales pleas that her son be treated as an equal member of society, the
school maintained its position that Doe must use a segregated restroom. However, the
school and Mrs. Gonzales agreed to meet to try and resolve this issue.
On September 5, 2015 Mrs. Gonzales, and several of the middle school administrators,
met to discuss whether the school would treat Doe with the dignity and respect that all
other students receive. The principal then determined that Does entreaty for equal treatment must be taken to you, the Superintendent.
Soon after, the middle school principal called Mrs. Gonzales with the good news - Doe
was now allowed to use the facilities matching his gender identity. Yet this victory for
equality was short lived. About two (2) hours after this phone call, you called Mrs. Gonzales to inform her that this issue must be taken to the Elko County School Board of Trustees
for a vote.

On September 22, 2015 the Board of Trustees met to decide Does fate. The Board
voted unanimously in favor of discrimination; it forced Doe to remain segregated from his
peers and use an alternate bathroom.
To make matters worse, because the Elko County School District insisted that this matter be publically debated by the Board of Trustees, Doe was outed to the entire community
as transgender. This very public school board meeting stripped Doe of his right to privacy.
Moreover, subsequent to the public meeting and his outing, Doe has been bullied at school
based on his transgender status. He has been called demeaning names and is subject to
ridicule during the school day.
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Medical opinion is unequivocal - gender identity is not a choice. Many people have and
express a clearly established gender identity while in school or even before they reach
school age.1 The Elko County School District, however, is forcing Doe to use facilities that
do not correspond to his gender identity, and proposes a humiliating accommodation of
a third restroom or other facility for transgender student use. The right to use the restroom corresponding to ones gender identity is one of the most basic aspects of nondiscrimination for a transgender person.2 Those who identify with sex assigned at birth
do not face such demeaning choices.
II.

LEGAL ANALYSIS

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Although I am sure you are aware of the many laws you are currently violating, I
recount them again for you below.
A. Elko County School District Is Violating Title IX and the Equal Protection
Clause of the United States Constitution
The Districts actions in denying Doe equal restroom and locker room access are vio-

See World Prof. Ass'n for Transgender Health ("WPATH"), WPATH Clarification on
Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage in the USA,
at
1
(June
17,
2008),
http://www.wpath.org/uploaded_files/140/files/Med%20Nec%20on%202008%20Letterhead.pdf (citing American
Academy of Pediatrics).
2
Jennifer Johnson, Transgender Youth in Public Schools: Why Identity Matters in the Restroom, 40 WM. MITCHELL L. REV. 63, 75, http://web.wmitchell.edu/law-review/wp-content/uploads/Volume40/documents/JohnsonFinal.pdf (citing NAN D. HUNTER ET AL. THE
RIGHTS OF LESBIANS, GAY MEN, BISEXUALS AND TRANSGENDER PEOPLE, 176 (4th ed.
2004)).

lations of Title IX of the Education Amendments of 1972 (Title IX), and the Equal Protection Clause of the United States Constitution, both of which prohibit government discrimination on the basis of sex.3

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Title IX prohibits discrimination based on sex in any education program that receives
federal financial assistance.4 Discrimination against transgender people is sex discrimination.5 The Ninth Circuit has specifically held that discrimination based on a persons
transgender status, or gender non-conforming identity can amount to gender discrimination. In Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 F. App'x 492, 493 (9th Cir. 2009),
the Court reaffirmed the notion that gender stereotyping is direct evidence of sex discrimination, under Price Waterhouse v. Hopkins, 490 US 228, 251 (1989). The Court in Kastl
then held that it is unlawful to discriminate against a transgender (or any other) person
because he or she does not behave in accordance with [] expectations for men or women .
. . Id.
Moreover, many courts and civil rights agencies have found that preventing a
transgender person from using the restroom in accordance with that person's gender identity constitutes sex discrimination.6 Federal courts have also made clear that Title IX protects students from discrimination based on gender identity, gender nonconformity, or

See, e.g., 20 U.S.C. 1681(a); United States v. Virginia, 518 U.S. 515 (1996).
20 U.S.C. 1681(a).
5
See, e.g., Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (upholding claim brought
by transgender prisoner under Violence Against Women Act (VAWA), remarking that under Title VII and VAWA, the terms sex and gender have become interchangeable);
Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) ([D]iscrimination against a
transgender individual because of her gender-nonconformity is sex discrimination, whether
its described as being on the basis of sex or gender.); Schroer v. Billington, 577 F.Supp.2d
293, 308 (D.D.C. 2008) (holding that an agencys rescission of a job offer to a transgender
woman after being advised that she planned to [undergo] sex reassignment surgery was
literally discrimination because ofsex); Lopez v. River Oaks Imaging & Diagnostic
Grp., Inc., 542 F. Supp. 2d 653, 660 (S.D. Tex. 2008)(Lopez's transsexuality is not a bar
to her sex stereotyping claim. Title VII is violated when an employer discriminates against
any employee, transsexual or not, because he or she has failed to act or appear sufficiently
masculine or feminine enough for an employer.); Macy v. Holder, EEOC DOC
120120821, 2012 WL 1435995 (E.E.O.C. 2012) (failure to hire woman because she was
transgender was sex discrimination.).
6
See, e.g., Hart v. Lew, 973 F. Supp. 2d 561 (D. Md. 2013) (allegation that employer
repeatedly denied transgender female employee access to the women's restroom could establish a claim of sex discrimination); Doe v. Regional Sch. Unit 26, 86 A.3d 600 (Me.
2014) (denying transgender girl use of the girls restroom at her school violated state's
Human Rights Act); Mathis v. Fountain-Fort Carson Sch. Dist. 8, Charge No.
4

transgender status.7
Recently, the U.S. Department of Education's Office for Civil Rights (OCR), which
enforces Title IX, published guidance making explicit that Title IX's sex discrimination
prohibition extends to claims of discrimination based on gender identity, and indicated
that it would accept such complaints for investigation and resolution.8 In fact, OCR and the
U.S. Department of Justice have entered into binding settlement agreements requiring
school districts to allow transgender students to use restrooms and other sex-segregated
facilities that correspond to their gender identity instead of separate individual restrooms
just like other boys and girls.9
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Moreover, the Districts decision to discriminate against Doe on the basis of his
transgender status violates Does right to be free from sex discrimination under the Equal
Protection Clause of the Fourteenth Amendment to the Unites States Constitution. Courts
have repeatedly found that treating a person differently because of their gender identity is
unconstitutional sex discrimination under the Fourteenth Amendment.10 When government
P20130034X, at 10 (Colo. Div. of Civil Rights June 17, 2013), http://www.transgenderlegal.org/media/uploads/doc_529.pdf (school district discriminated against transgender girl
based on her sex by not allowing her to use the girls restroom); see also Lusardi v.
McHugh, EEOC Appeal No. 0120133395 (E.E.O.C. 2015), http://transgenderlawcenter.org/wp-content/uploads/2015/04/EEOC-Lusardi-Decision.pdf (refusal to allow
woman access to the womens restroom because she was transgender was sex discrimination under Title VII).
7
Miles v. N.Y. Univ., 979 F. Supp. 248 (S.D.N.Y. 1997) (upholding complaint by
transgender student brought under Title IX arising out of professors alleged sexual harassment of student); Logan v. Gary Cmty. Sch., No. 2:07-CV-431, 2008 WL 4411518 (N.D.
Ind. Sept. 25, 2008) (refusing to dismiss Title IX claim where transgender student was
denied entry to prom for wearing a dress).
8
U.S. Department of Education, Office for Civil Rights, Questions and Answers on Title
IX and Sexual Violence at 5 (Apr. 29, 2014), http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf.
9
Resolution Agreement, Downey Unified School District, OCR Case No. 09-12-1095, at
1 (Oct. 8, 2014), http://www2.ed.gov/documents/press-releases/downey-school-districtagreement.pdf; Resolution Agreement, Arcadia Unified School District, OCR Case No.
09-12-1020, DOJ Case No. 169-12C-70, at 3 (July 24, 2013), http://www.justice.gov/crt/about/edu/documents/arcadiaagree.pdf.
10
See, e.g., Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (in 14th Amendment
employment discrimination case, discrimination against a transgender individual because of her gender nonconformity is sex discrimination); Smith v. City of Salem, Ohio,
378 F.3d 566 (6th Cir. 2004) (discrimination against transgender firefighter was sex discrimination under 14th Amendment); Norsworthy v. Beard, 87 F. Supp. 3d 1104 (N.D. Cal.
2015) (discrimination against transgender prisoner was sex discrimination entitled to intermediate scrutiny under 14th Amendment).

entities discriminate on the basis of sex, courts subject them to a demanding standard.
Every day the Elko County School District continues to deny Doe full and equal access
to its facilities, it is violating both Does constitutional and federal statutory rights.
B. Elko County School District Is Violating Nevada Public Accommodations
Laws; Is Discriminating Against Doe On The Basis Of Sex and Gender Identity

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Nevada state law plainly forbids places of public accommodation, including schools,
from discriminating against anyone based on their sex or gender identity. Schools must
give all people the full and equal enjoyment of the facilities, privileges, advantages and
accommodations of any place of public accommodation, without discrimination or segregation on the ground of sex, gender identity or expression. NRS 651.070 (emphasis
added); see also NRS 651.050(3)(k) (Place of public accommodation means [a]ny
nursery, private school or university or other place of education[.]). By excluding Doe
from boys restrooms and locker rooms, Elko County School District segregates and discriminates against Doe on the basis of his sex and his gender identity. This is a violation
Nevadas public accommodation statute.
Importantly, courts and administrative agencies have found that denying transgender
people equal access to restrooms violates public accommodation laws forbidding discrimination on the basis of sex or gender identity.11 These decisions hold that transgender men
must be allowed access to locker rooms and restrooms, just like any other man, and
transgender women must be allowed access locker rooms and restrooms, like any other
woman.
Moreover, even the Nevada Legislature has determined that the Nevada public accommodations law applies to school restrooms and locker rooms. The authors of the recently
failed SB 375, which sought to force transgender students to use the restroom of their sex
11

See, e.g., Mathis v. Fountain-Fort Carson Sch. Dist. 8, Charge No. P20130034X, at 10
(Colo. Div. of Civil Rights June 17, 2013), http://www.transgenderlegal.org/media/uploads/doc_529.pdf (school district discriminated against transgender girl based on her sex
by not allowing her to use the girls restroom); Doe v. Regional School Unit 26, 2014 ME
11 (Me. 2014) (school district violated public accommodations statute by denying
transgender girl access to girls restroom); Department of Fair Employment & Housing v.
American Pacific Corp., No. 34-2013-00151153-CU-CR-GDS, minute order (Cal. Super.
Ct. March 13, 2014), http://www.dfeh.ca.gov/res/docs/Announcements/Lozano%20final%20order.pdf (employer discriminated against transgender man by denying him access to mens locker room).

assigned at birth, included a clause exempting SB 375 from the state public accommodations lawa clear recognition that current law requires equal access for transgender students.12 If the legislature did not think SB 375 violated the public accommodations statute,
it would not have taken steps to exempt this bill from the statutes protections.
The District must abide by state law, and must allow Doe access to the boys restrooms
and locker rooms, just like any other boy.
C. Elko County School District is Violating Newly Created Anti-Bullying Law SB
504; Is Creating an Intimidating and Hostile Educational Environment for
Doe based on His Gender Identity

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Under the recently passed SB 504, the Elko County School District has an affirmative
duty to create and provide a safe and respectful learning environment for all pupils that is
free of bullying and cyber-bullying. SB 504 defines bullying as acts which, creat[e] an
intimidating or hostile educational environment for the pupil; or [i]nterfere[] with the academic performance of the pupil or the ability of the pupil to participate in or benefit from
services, activities or privileges provided by a school,13 when the act is based upon
[a]ctual or perceived . . . gender identity[.]14 Denying Doe access to facilities like any
other boy because of his gender identity is humiliating, it negatively impacts his academic
performance, and creates a hostile school environment. It is surely bullying under SB 504.

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Protection of transgender students from bullying is vital to their well-being. Studies

demonstrate that a majority of transgender students are verbally harassed at school based
on their gender expression. And, overall, even compared to non-transgender LGB students,
transgender students face the most hostile school climates.15 Although transgender youth
face a far greater risk of harassment and discrimination at school, that risk is significantly
reduced when students are allowed to integrate into school activities and facilities.16

12

See AB 375 3, http://www.leg.state.nv.us/Session/78th2015/Bills/AB/AB375_R1.pdf.

SB 504 6(1), https://www.leg.state.nv.us/Session/78th2015/Bills/SB/SB504_EN.pdf.
14
Id.
15
See JOSEPH G. KOSCIW, ET AL., GLSEN, THE 2013 NATIONAL SCHOOL CLIMATE SURVEY
(2014),
http://www.glsen.org/sites/default/files/2013%20National%20School%20Climate%20Survey%20Full%20Report_0.pdf.
16
Memorandum of Points and Authorities of Amici Curiae Equality California and GayStraight Alliance Network in Support of Defendant's Demurrer 9, http://www.lambdalegal.org/sites/default/files/legal-docs/downloads/ca-education-committee_ca_20090319_amicus-gsa-network-and-eqca.pdf.
13

The School Boards vote denying Does rights, however, stands in direct contravention
to Nevadas commitment to creating a safe and respectful learning environment for all
students. The Districts actions condone and encourage bullying of transgender students.
Rather than doing the work of the bullies, the District is required by state law to work
towards creating an inclusive environment where students can focus on learning rather than
which bathroom they are permitted to use.
D. Elko County School District Violated Does Privacy Rights

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Moreover, the District has interfered with Does right to privacy and publically disclosed private facts about Does gender identity to the community without his consent.
In Nevada, an entity is liable for the tort of public disclosure of private facts when they
have publically disclosed private information which would be offensive and objectionable
to a reasonable person of ordinary sensibilities.17 By forcing Does request to use the boys
bathroom into a public forum, the District disclosed Does gender identity to the entire
community. Does gender identity is personal, private, medical information and was not
widely known in the community before the boards public mishandling of his request.
Moreover, courts across the country have held that a persons transgender status is a legally
protected privacy interest.18
The disclosure of such personal information is clearly offensive and objectionable
publicizing a childs transgender status against their will is no different than publicizing
information about any non-transgender childs genitals. It is up to Doe alone to decide to
whom to disclose his transgender status, and Does gender identity is of no concern to the
public.

17

See Montesano v. Donrey Media Grp., 99 Nev. 644 (1983).

See Diaz v. Oakland Tribune, 139 Cal. App.3d 118 (1983) (transgender woman could
proceed with claim for invasion of privacy against newspaper which exposed her
transgender status); Powell v. Schriver, 175 F.3d 107, 111-12 (2nd Cir. 1999) (finding it
was a violation of privacy for prison officials to disclose transgender prisoners status to
other inmates recognizing the excruciatingly private and intimate nature of transexualism.); Kastl v. Maricopa Community College Dist. 2004 WL 2008954, *5-6 (D. Ariz.
2004) (holding that requiring details about medical history prior to use of womens restroom violated transgender employees right to privacy); Doe v. Blue Cross & Blue Shield
of R.I. 794 F.Supp. 72, 74 (D. R.I. 1992) (finding that forcing students to use bathrooms
corresponding to birth sex requires revealing transgender status and constitutes an invasion
of their privacy).
18

E. Elko County School Districts Policy Regarding Transgender Students is

Discriminatory
As I understand it, Elko County School Districts current policy for locker room and
bathroom accessibility for transgender students requires a case by case evaluation and a
balancing of the civil rights of a transgender student against the rights and desires of all
other students involved. Specifically, the school will balance the transgender students
constitutionally guaranteed rights against the purported privacy rights of other students.

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Yet, discrimination against Doe and all other transgender students cannot be justified
by false appeals to non-transgender students privacy; nondiscrimination laws are not
conditioned by the majoritys comfort in accepting minority groups.
Courts have found that there is no right for non-transgender individuals to exclude
transgender individuals from gender-segregated facilities, and that there is no legally protected privacy interest implicated when schools permit transgender students to use gendersegregated facilities consistent with gender identity.19
While school districts can and should make allowances for any student who desires
additional privacy in restrooms or locker rooms, they may not require transgender students
to use separate facilities or treat transgender students differently than every other student.
Elko County Schools must allow Doe full access to boys restrooms and locker rooms.
III.

RESOLUTION

The Elko County School Districts refusal to allow Doe to use the boys restroom violates Title IX, the Equal Protection Clause, and both Nevada public accommodation laws
and Nevada laws prohibiting bullying. Further, the Elko County School Districts insistence that this issue be discussed in a public forum violated Does right to privacy. The Elko

19

See, e.g., Crosby v. Reynolds, 763 F. Supp. 666 (D. Me. 1991) (non-transgender womans
privacy rights not violated when housed with transgender woman in county jail); Kastl v.
Maricopa Community College Dist., 2004 WL 2008954 (D. Ariz 2004) (rejecting argument
that transgender womans presence in womens restroom was invasion of privacy or a
threat to non-transgender woman); California Educ. Committee LLC v. OConnell, No. 342008-00026507-CU-CR-GDS, slip op. (Cal. Super Ct. June 1, 2009)(finding that student
who shared locker room with transgender student did not adequately state a claim for invasion of privacy), https://www.lambdalegal.org/sites/default/files/legal-docs/downloads/ca-education-committee_ca_20090601_final-ruling-demurrer-granted.pdf

County School Districts policy must be changed to accurately reflect the state of the law
and to respect the civil rights of transgender students.
Elko County School Districts actions are significantly impairing Does ability to learn,
grow, and thrive in the school environment. Denial of access to gender-appropriate restrooms has a serious impact on transgender people, impacting their education, employment, health and participation in public life.20 Conversely, full acceptance of a students
gender identity, including allowing them access to gender-appropriate restrooms, can promote a positive educational experience. We hope that you share the same goal of ensuring
the best outcome for Does health, well-being and education.
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In order to facilitate immediate resolution of this issue, please respond to this letter as
soon as possible and no later than Tuesday October 13, 2015 and confirm that you will
allow Doe to use the boys restrooms and other sex-segregated facilities on an equal footing
with all other boys, and that you have eliminated the discriminatory policy at issue. You
can reach me via phone at 702-366-1536 or e-mail at rose@aclunv.org
If I do not hear from you by then I will assume you are not interested in resolving
this issue, and I will proceed with pursuing all necessary legal actions.

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Sincerely,

Amy M. Rose
Legal Director
ACLU of Nevada
CC Via E-mail Only:
Richard Barrows, Esq.
Elko County School District Board of Trustees
Jody L. Herman, Gendered Restrooms and Minority Stress: The Public Regulation of
Gender and its Impact on Transgender Peoples Lives, 19 J. PUB. MGMT. & SOC. POL'Y 65
(Spring 2013), http://williamsinstitute.law.ucla.edu/wp-content/uploads/Herman-Gendered-Restrooms-and-Minority-Stress-June-2013.pdf.
20