Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep't of Educ.
| Decision Date | 26 September 2016 |
| Docket Number | Case No. 2:16-CV-524 |
| Parties | BOARD OF EDUCATION OF THE HIGHLAND LOCAL SCHOOL DISTRICT, Plaintiff, v. UNITED STATES DEPARTMENT OF EDUCATION, et al., Defendants. Jane DOE, a minor, by and through her legal guardians Joyce and John Doe Intervenor Third-Party Plaintiff, v. Board of Education of the Highland Local School District, et al., Third-Party Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
David R. Langdon, Langdon Law LLC, West Chester, OH, Andrew J. Burton, Renwick, Welsh & Burton LLC Mansfield, OH, Douglas G. Wardlow, Gary S. McCaleb, Jeana Hallock, Kenneth J. Connelly, Alliance Defending Freedom, Scottsdale, AZ, J. Matthew Sharp, Alliance Defending Freedom, Lawrenceville, GA, for Plaintiff.
Benjamin L. Berwick, U.S. Department of Justice, Boston, MA, Spencer E. Amdur, Sheila Lieber, U.S. Department of Justice, Washington, DC, for Defendants.
John Richard Harrison, Linda M. Italiano Gorczynski, Hickman & Lowder, Cleveland, OH, Derek Wikstrom, Jennifer Mintz, Joseph Weissman, Jyotin Hamid, Debevoise & Plimpton LLP, New York, NY, Asaf Orr, San Francisco, CA, Christopher Stoll, National Center for Lesbian Rights, San Francisco, CA, for Intervenor Third-Party Plaintiff.
Matthew John Markling, McGown & Markling Co, L.P.A., Akron, OH, Patrick Vrobel, Sean Thomas Koran, Akron, OH, for Third-Party Defendants.
Jane Doe, an eleven-year-old transgender girl, seeks to use the girls' restroom at Highland Elementary School. Highland will not permit her to do so. After an investigation, the Office of Civil Rights ("OCR") of the Department of Education ("DOE") found that Highland's policy impermissibly discriminated against Jane on the basis of her sex in violation of Title IX of the Education Amendments of 1972. Highland now asks this Court to enjoin DOE and the Department of Justice ("DOJ") from enforcing the antidiscrimination provisions of Title IX against Highland. Jane Doe, in turn, asks the Court to enjoin Highland's policy and order Highland to permit her to use the girls' restroom and otherwise treat her as a girl. For the reasons that follow, the Court DENIES Highland's Motion for Preliminary Injunction and GRANTS Jane Doe's Motion for Preliminary Injunction.
Title IX 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 education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). Title IX also specifies that nothing in the statute "shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes." Id. § 1686. The DOE has promulgated regulations clarifying that a recipient of federal funds "may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities for students of the other sex." 34 C.F.R. § 106.33.
Over the past several years, DOE has issued several guidance documents explaining the agency's interpretation of Title IX and its implementing regulations with respect to transgender students. In a 2010 Dear Colleague Letter, a guidance document explaining DOE's interpretation of Title IX, OCR wrote that Title IX "protect[s] all students, including... transgender ...students, from sex discrimination." (10/26/10 Dear Colleague Letter, Doc. 33–1 at 8.) In April 2014, OCR issued a "significant guidance document" stating that "Title IX's sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity." (Questions and Answers on Title IX and Sexual Violence, Doc. 33–2 at B–2.) In December 2014, OCR published further guidance clarifying that "[u]nder Title IX, a recipient generally must treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes." (Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities, Doc. 33–3 at 25.) In April 2015, OCR issued a Title IX Resource Guide, which stated that schools should "help ensure that transgender students are treated consistent with their gender identity in the context of single-sex classes." (Resource Guide, Doc. 33–4 at 21–22.) Most recently, on May 13, 2016, DOJ and DOE issued joint guidance that "[w]hen a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity." (Dear Colleague Letter on Transgender Students, Doc. 33–5 at 3.) The letter also clarified that "[h]arassment that targets a student based on gender identity, transgender status, or gender transition is harassment based on sex, and the Departments enforce Title IX accordingly." (Id. at 2.)
Jane Doe is an eleven-year-old transgender girl who is enrolled in the fifth grade at Highland Elementary School. Jane, who was assigned male at birth, has communicated to her family that she is female since she was four years old. (Declaration of Joyce Doe, Doc. 35–2 at ¶ 2.) After her parents sought out the advice of medical and mental health professionals, Jane was diagnosed with gender dysphoria. (Id. at ¶ 4; Declaration of Lourdes Hill, Doc. 36–2 at ¶ 5.) According to Diane Ehrensaft, a developmental and clinical psychologist who specializes in working with children and adolescents with gender dysphoria, gender dysphoria is "the medical diagnosis for the severe and unremitting emotional pain resulting from th[e] incongruity" between one's gender identity and the sex he or she was assigned at birth. (Declaration of Diane Ehrensaft, Ph.D, Doc. 35–4 at ¶¶ 23–24.) Jane's health care providers recommended that she socially transition to treat her gender dysphoria. (Hill Decl., Doc. 36–2 at ¶ 7.) "Social transition" involves "changes that bring the child's outer appearance and lived experience into alignment with the child's core gender," including "changes in clothing, name, pronouns, and hairstyle." (Ehrensaft Decl., Doc. 35–4 at ¶ 27.)
When Jane began kindergarten at Highland Elementary, she used a traditionally male name and was listed as male in school records. (Compl., Doc. 1 at ¶¶ 61–63.) In 2012, however, Jane's parents, Joyce and John Doe, helped her socially transition by obtaining appropriate clothing and a legal name change, treating her as their daughter, and asking others to treat her likewise. (Joyce Doe Decl., Doc. 35–2 at ¶ 5.) According to Joyce, Jane immediately began to feel more joyful, at ease with herself, and less angry. (Id. at ¶ 6.) That summer, before she started first grade, Joyce informed Defendant Shawn Winkelfoos, the principal of Highland Elementary, that Jane had socially transitioned and asked that the School District treat her as female, permit her to use the girls' restroom, and ensure that her school records reflected her chosen name and correct gender marker. (Id. at ¶¶ 7–8; Compl., Doc. 1 at ¶ 66.) Winkelfoos denied her request to permit Jane to use the girls' restroom and to change the records to reflect her female name, although the School District has stated that it agreed to "address [Jane] as a female." (Id. at ¶ 67; Joyce Doe Decl., Doc. 35–2 at ¶¶ 9–10.) Highland has a policy that "students using sex-specific locker rooms and restrooms, or overnight accommodations during school trips or events, must use the facilities that correspond to their biological sex." (Compl., Doc. 1 at ¶ 74.) Jane, therefore, was required to use the office restroom, which was generally used by school personnel and other adults. (Joyce Doe Decl., Doc. 35–2 at ¶ 9.) Joyce and John Doe observed that this arrangement was "taking a toll on Jane's mental health." (Id. at ¶ 11.)
Joyce renewed her request the following year, in the summer of 2013, before Jane started second grade. (Id. at ¶ 12.) Winkelfoos again denied the request and Jane was required to use the unisex restroom in the teachers' lounge. (Id. at ¶ 15.) Jane reported to Joyce that when she would pass through the lounge to access the restroom, "teachers would glare at her and make her feel uncomfortable." (Id. ) Jane began to suffer from extreme anxiety and depression. (Id. at ¶ 16.) In May 2014, she was hospitalized for suicidal ideation and depressed mood. (Id. )
In December 2013, Joyce filed a complaint with OCR, which proceeded to investigate the complaint. (Id. ; Compl., Doc. 1 at ¶ 97.) The complaint alleged that Highland discriminated against Jane on the basis of her sex by requiring her to use a separate individual-user bathroom and denying her access to the same bathrooms used by other female students. (Id. at ¶ 98; Complaint-in-Intervention, Doc. 32 at ¶ 72.) On August 29, 2014, OCR amended the complaint to include an additional allegation, namely, that school staff members subjected Jane to harassment, including by referring to her as a boy and failing to use female pronouns when referring to her, and that the School District failed to respond appropriately when staff members were informed of student harassment toward Jane. (Id. at ¶ 73; Compl., Doc. 1 at ¶ 100.)
In September 2014, at the beginning of Jane's third-grade year, Joyce also filed a complaint with Superintendent William Dodds against Principal Winkelfoos, alleging that Highland had created a hostile environment for Jane. Dodds investigated the complaint and found it to be without merit. (Joyce Doe Decl., Doc. 35–2 at ¶ 17.) That same month, Joyce put in a request to Superintendent Dodds to ask the Board of Education to permit Jane to use the girls' restroom. (Id. ...
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