M.A.B. v. Bd. of Educ. of Talbot Cnty.

• Decision Date: 12 March 2018
• Docket Number: Civil Action No. GLR–16–2622
• Parties: M.A.B., Plaintiff, v. BOARD OF EDUCATION OF TALBOT COUNTY, et al., Defendants.
• Court: U.S. District Court — District of Maryland

286 F.Supp.3d 704

M.A.B., Plaintiff,

v.BOARD OF EDUCATION OF TALBOT COUNTY, et al., Defendants.

Civil Action No. GLR–16–2622

United States District Court, D. Maryland.

Signed March 12, 2018

Jennifer Lauren Kent, Jer Welter, Laura McMahon DePalma, FreeState Justice, Inc., Baltimore, MD, Joshua Block, Pro Hac Vice, New York, NY, for Plaintiff.

Edmund J. O'Meally, Andrew G. Scott, Pessin Katz Law, P.A., Towson, MD, Rochelle S. Eisenberg, Pessin Katz Law, P.A., Columbia, MD, for Defendants.

MEMORANDUM OPINION

George L. Russell, III, United States District JudgeTHIS MATTER is before the Court on Defendants Board of Education of Talbot County (the "Board"), Kelly L. Griffith, and Tracy Elzey's Motion to Dismiss for Failure to State a Claim (ECF No. 36) and Plaintiff M.A.B.'s Motion for Preliminary Injunction (ECF No. 41). This action arises from Defendants' decision to require M.A.B., a transgender boy, to use restrooms and locker rooms for girls. The Motions are ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2016). For the reasons outlined below, the Court will deny the Motion to Dismiss. In addition, the Court will deny without prejudice the Motion for Preliminary Injunction.

I. BACKGROUND¹

M.A.B. is a fifteen-year-old boy² who attends high school at St. Michaels Middle High School (the "High School"), which is located in Talbot County, Maryland. (Compl. ¶ 2, ECF No. 1). His birth sex,³ which is usually based on "the appearance of the person's external genitalia," is "female." (Id. ¶¶ 20, 21). Yet M.A.B.'s "deeply-held internal sense of his own gender," known as his gender identity, is male. (Id. ¶¶ 2, 20). "[D]eterminations of gender," unlike determinations of birth sex, are based on "multiple factors." (Id. ¶ 21). These factors include "chromosomes, hormone levels, internal and external reproductive organs, and gender identity," with gender identity being the "primary determinant" among them. (Id. ¶¶ 21, 22).

Because M.A.B. was designated female at birth but has a male gender identity, that designation does not accurately reflect his gender identity—giving him the status of a transgender boy. (Id. ¶ 20). As a result, he also has had feelings of gender dysphoria

since early childhood. (Id. ¶¶ 2, 26). Gender dysphoria and "the status of being transgender" are "not synonymous," though "they are correlated." (Id. ¶ 24). Gender dysphoria is the "clinically significant distress" experienced by transgender individuals. (Id. ¶ 23). Treatment for gender dysphoria includes "social transitioning," which consists of "living consistent with one's gender identity...in all aspects of one's life, including when accessing single-sex spaces like restrooms and locker rooms." (Id. ¶ 25).

When M.A.B. was in the sixth grade, he "arrived at the clear realization" that he was a boy. (Id. ¶¶ 2, 26). M.A.B. received a clinical diagnosis of gender dysphoria

in 2014, and has been seeing a medical professional regularly for his gender dysphoria and process of gender transition. (Id. ¶ 26). When M.A.B. turned thirteen, therefore, he began to socially transition to life as male, including going by "a more traditionally masculine chosen first name." (Id. ¶ 28). The Board and the High School "took several steps" to assist M.A.B.'s social transition. (Id. ¶ 30). They addressed him by his new name, addressed him with male pronouns, and conducted a professional development workshop for its staff in 2015 on the topic of transgender students. (Id. ). M.A.B. later legally changed his name. (Id. ¶ 28). Since his transition began, M.A.B. "has been generally accepted and recognized as male" by his peers at the High School. (Id. ¶ 29).

While aiding M.A.B.'s social transition in some ways, Defendants prohibited M.A.B. from using the High School's boys' locker rooms, and initially, its boys' restrooms. (Id. ¶ 31). Instead, the Board "designated" three of the High School's single-use restrooms as "gender neutral" and required M.A.B. to use them when he needed to use the restroom or change his clothes. (Id. ¶ 32). After the United States Court of Appeals for the Fourth Circuit issued its opinion in G.G. ex rel. Grimm v. Gloucester County School Board., 822 F.3d 709 (4th Cir. 2016), Defendants permitted M.A.B. to use the boys' restrooms. (Id. ¶¶ 31, 45). Since M.A.B. began using the boys' restrooms, no male students at the High School have voiced "any discomfort" about M.A.B.'s access. (Id. ¶ 49). In fact, many of M.A.B.'s peers "congratulated him" on the Board's decision to allow M.A.B. access. (Id. ).

The Board, however, continued to prohibit M.A.B. from using the boys' locker rooms. (Id. ¶¶ 31, 45). It maintained its decision to require M.A.B. to use the restrooms it designated as gender neutral whenever M.A.B. had to change his clothes (the "Policy").⁴ (Id. ¶¶ 32, 45). Unlike the locker rooms, the designated restrooms the Board requires M.A.B. to use do not have benches or showers. (Id. ¶ 36). Meanwhile, the boys' locker rooms have partitioned stalls for changing clothes and partitioned stalls that have toilets and stall doors. (Id. ¶ 48).

The Board requires only M.A.B., and no other student, to change clothes in the designated restrooms. (Id. ¶ 37). This has resulted M.A.B. experiencing humiliation and embarrassment, as well as alienation from his peers. (Id. ¶ 38). He has received "weird looks" from other students when using the designated restrooms to change. (Id. ). M.A.B., then, "has tried to use them as infrequently and inconspicuously as possible." (Id. ).

The designated restrooms are "remotely located" from the boys' and girls' locker rooms and the gymnasium. (Id. ¶ 35). The designated restrooms also do not have lockers. (Id. ¶ 36). So, M.A.B. has to go to his student locker, which is far away from the designated restrooms, before changing his clothes, and his physical education teacher gives him extra time to change. (Id. ¶¶ 40, 41). Thus, when M.A.B. took physical education class in 2015, substitute teachers unaware of the Policy forced him to explain why he was tardy to class. (Id. ¶ 41). This required M.A.B. to disclose his transgender status to avoid disciplinary action. (Id. ). The "stigma and impracticality" of changing his clothes in the designated restrooms led M.A.B. to attend physical education class without changing when he thought he would not sweat very much. (Id. ¶ 42). At times, his physical education teacher penalized M.A.B.'s grade for not changing his clothes. (Id. ).

M.A.B., by and through his parents and next friends L.A.B. and L.F.B., filed the present action on July 19, 2016 against the Board, Kelly L. Griffith in her official capacity as Superintendent of Talbot County Public Schools, and Tracy Elzey in her official capacity as Principal of the High School. (ECF No. 1). In his four-count Complaint, he alleges claims under: Title IX of the Education of Amendments of 1972, 20 U.S.C. § 1681 et seq. (2018) ("Title IX") (Count I); the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (Count II); Article 24 of the Maryland Declaration of Rights (Count III); and Article 46 of the Maryland Declaration of Rights (Count IV). (Id. ¶¶ 51–75). M.A.B. seeks judgment declaring that the Policy violates his rights under Title IX, the Fourteenth Amendment, and Articles 24 and 26. (Id. at 17). M.A.B. also seeks a preliminary injunction requiring Defendants to allow him to use the High School boys' locker room on the same terms as other male students. (Id. ). Finally, M.A.B. seeks nominal and compensatory damages, costs, and attorneys' fees. (Id. ).

Defendants now move to dismiss all counts against them for failure to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6), filing their Motion on April 18, 2017. (ECF No. 36). M.A.B. filed an Opposition on May 22, 2017. (ECF No. 40). Defendants filed a Reply on June 5, 2017. (ECF No. 42). M.A.B. also moves for a preliminary injunction under Rule 65, filing his Motion on May 22, 2017. (ECF No. 41). Defendants filed an Opposition on June 5, 2017. (ECF No. 43). M.A.B. filed a Reply on June 19, 2017. (ECF No. 44).

II. DISCUSSION

A. Rule 12(b)(6) Standard of Review

"The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint," not to "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243–44 (4th Cir. 1999) ). A complaint fails to state a claim if it does not contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), or does not "state a claim to relief that is plausible on its face," Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). Though the plaintiff is not required to forecast evidence to prove the elements of the claim, the complaint must allege sufficient facts to establish each element. Goss v. Bank of Am., N.A., 917 F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) ), aff'd sub nom., Goss v. Bank of Am., NA, 546 Fed.Appx. 165 (4th Cir. 2013).

In considering a Rule 12(b)(6) motion, a court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510...