N.H. v. Anoka-Hennepin School District No. 11, 092820 MNCA, A19-1944

Docket NºA19-1944
Opinion JudgeREYES, JUDGE
Party NameN.H., Respondent, v. Anoka-Hennepin School District No. 11, Appellant. and Rebecca Lucero, Commissioner of the Minnesota Department of Human Rights, plaintiff-intervenor, Respondent,
AttorneyTimothy P. Griffin, Andrew W. Davis, Stinson LLP, Minneapolis, Minnesota; and Teresa J. Nelson, David P. McKinney, American Civil Liberties Union of Minnesota, Minneapolis, Minnesota; and Christy L. Hall, Jess Braverman, Gender Justice, St. Paul, Minnesota (for respondent N.H.) Keith Ellison, Att...
Judge PanelConsidered and decided by Johnson, Presiding Judge; Reilly, Judge; and Reyes, Judge. JOHNSON, Judge (dissenting)
Case DateSeptember 28, 2020
CourtCourt of Appeals of Minnesota

N.H., Respondent,

and

Rebecca Lucero, Commissioner of the Minnesota Department of Human Rights, plaintiff-intervenor, Respondent,

v.

Anoka-Hennepin School District No. 11, Appellant.

No. A19-1944

Court of Appeals of Minnesota

September 28, 2020

Anoka County District Court File No. 02-CV-19-922

Timothy P. Griffin, Andrew W. Davis, Stinson LLP, Minneapolis, Minnesota; and

Teresa J. Nelson, David P. McKinney, American Civil Liberties Union of Minnesota, Minneapolis, Minnesota; and

Christy L. Hall, Jess Braverman, Gender Justice, St. Paul, Minnesota (for respondent N.H.)

Keith Ellison, Attorney General, Rachel Bell-Munger, Assistant Attorney General, St. Paul, Minnesota (for respondent commissioner)

Jeanette M. Bazis, Katherine M. Swenson, Amran A. Farah, Greene Espel, PLLP, Minneapolis, Minnesota (for appellant)

Cassandra Jacobsen, Cozen O'Connor, Minneapolis, Minnesota; and Amanda L. Nelson (pro hac vice) Cozen O'Connor, New York, New York; and

Marla Benedek, Cozen O'Connor, Wilmington, Delaware; and

David P. Brown, Transgender Legal Defense & Education Fund, Inc., New York, New York (for amici curiae Family Tree Clinic of St. Paul, JustUs Health, and World Professional Association for Transgender Health)

Tara Kalar, World Without Genocide, St. Paul, Minnesota (for amicus curiae World Without Genocide)

Bruce Jones, Emily E. Chow, Thomas K. Pryor, Kelvin D. Collado, Faegre, Drinker, Biddle & Reath, LLP, Minneapolis, Minnesota (for amici curiae OutFront Minnesota and Transforming Families Minnesota)

Keith Ellison, Attorney General, Alec Sloan, Martha J. Casserly, Assistant Attorneys General, St. Paul, Minnesota (for amicus curiae Commissioner of the Minnesota Department of Education) Margaret A. Luger-Nikolai, David M. Aron, Eva C. Wood, Education Minnesota, St. Paul, Minnesota; and David J. Strom, Angela W. Thompson, American Federation of Teachers, AFL-CIO, Washington, D.C.; and

Alice O'Brien, Eric A. Harrington, National Education Association, Washington, D.C. (for amici curiae Anoka Hennepin Education Minnesota, Education Minnesota, National Education Association, and American Federation of Teachers)

Althea M. Huyser, Jacob P. Harris, Fredrickson & Byron, P.A., Minneapolis, Minnesota; and Christopher W. Bowman, Madigan, Dahl & Harlan, P.A., Minneapolis, Minnesota; and

Jenneane Jansen, Lommen Abdo, P.A., Minneapolis, Minnesota (for amicus curiae Minnesota State Bar Association)

Celeste E. Culberth, Leslie L. Lienemann, Culberth & Lienemann, LLP, St. Paul, Minnesota (for amici curiae GLBTQ Legal Advocates & Defenders and National Center for Lesbian Rights)

William Z. Pentelovitch, Maslon LLP, Minneapolis, Minnesota; and

Norman H. Pentelovitch, Anthony, Ostlund, Baer & Louwagie, PA, Minneapolis, Minnesota (for amici curiae Fischer, et al.)

Considered and decided by Johnson, Presiding Judge; Reilly, Judge; and Reyes, Judge.

SYLLABUS

A transgender high-school student who is denied use of a locker room that is available to students of the gender with which the student identifies and to which the student has socially transitioned states a claim upon which relief can be granted of sexual-orientation discrimination under Minn. Stat. § 363A.13, subd. 1 (2018).

The intermediate scrutiny standard applies to an equal-protection claim of sexual-orientation discrimination under article I, section 2 of the Minnesota constitution.

A transgender high-school student who is denied use of a locker room that is available to students of the gender with which the student identifies and to which the student has socially transitioned states a claim upon which relief can be granted of an equal-protection violation under article I, section 2 of the Minnesota Constitution.

OPINION

REYES, JUDGE

Appellant-school-district argues on appeal that the district court erred by denying its motion to dismiss respondent-transgender-student's claims arising out of the school district's requirement that the student use separate locker-room facilities. The district court certified two questions as important and doubtful:

Under Rule 12.02(e) of the Minnesota Rules of Civil Procedure and the Minnesota Human Rights Act, Minn. Stat. § 363A.13, subd. 1 (2018), may relief be granted when a school district requires a transgender boy to use locker-room facilities separate from the main boys' locker-room facilities, or is the claim barred by Goins v. W. Grp., 635 N.W.2d 717 (Minn. 2001)?

Under Rule 12.02(e) of the Minnesota Rules of Civil Procedure and the equal-protection rights granted under the Minnesota Constitution, may relief be granted when a school district requires a transgender boy to use locker-room facilities separate from the main boys' locker-room facilities and, if so, what level of scrutiny applies?

We rephrase the certified questions, answer in the affirmative, affirm the district court's denial of appellant's motion to dismiss, reverse on the district court's application of strict scrutiny as opposed to intermediate scrutiny, and remand for proceedings consistent with this opinion.

FACTS

While born female, N.H. identifies as and has socially transitioned to male. N.H. uses masculine pronouns, has selected a name that aligns with his male gender identity, and styles his hair and dresses in a traditionally masculine fashion. N.H. attended Coon Rapids High School (CRHS), a public high school in Anoka-Hennepin School District No. 11 (the school district) from 2015 to 2017. During his freshman year, N.H. joined the boys' swim team, and CRHS initially allowed him to use the boys' locker room. Toward the end of the swim season, the school district notified N.H. that he could not use the boys' locker room and had to use the girls' locker room, but retracted its decision later that same day. Four days later, N.H. was hospitalized because of mental-health concerns.

In March 2016, the school district's general counsel and director of student services and Title IX[1] coordinator wrote a memorandum addressing transgender-student use of bathrooms and locker rooms. The memorandum refers to "uncertainty between Minnesota state law, federal law, and the federal Office of Civil Rights," and indicates that restroom and locker-room use will "be determined on a case-by-case basis . . . . to ensure that all students feel safe and comfortable."

Between N.H.'s freshman and sophomore year, the school district remodeled the CRHS boys' locker room, creating a new "enhanced privacy" boys' changing area adjacent to the main boys' locker room, with a separate entrance. It includes a private toilet stall and two private stalls for changing and showering. In March 2017, the school district wrote to J.H., N.H.'s mother, recommending that N.H., then a sophomore, "use the boys' locker room with enhanced privacy" in connection with his physical-education class.

N.H. continued to use the main boys' locker room. The school district informed J.H. that N.H. would be disciplined if he continued to use the main boys' locker room. In April 2017, N.H. transferred to a school outside the school district. In August 2017, J.H. filed a charge of discrimination with the Minnesota Department of Human Rights (MDHR).

In 2019, J.H. filed this civil action in Anoka County, alleging one count of violating the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.13, subd. 1, and one count of violating the equal-protection provisions of article I, sections 1 and 7 of the Minnesota Constitution, and withdrew the charge filed at the MDHR. See Minn. R. 5000.0550. The complaint seeks, among other things, to permanently enjoin the school district from requiring transgender students to use facilities that are inconsistent with their gender identity. The school district moved to dismiss the complaint. When N.H. turned 18, he replaced J.H. as plaintiff, and the MDHR filed a notice of intervention. The district court denied the school district's motion to dismiss N.H.'s complaint for failure to state a claim upon which relief can be granted, determined that N.H.'s complaint stated a claim under both the MHRA and the Minnesota Constitution for violations of his constitutional rights to equal protection and due process, [2] determined that the strict scrutiny standard applied to N.H.'s equal-protection claim, and granted the MDHR's motion to intervene.

In October 2019, the district court granted the joint motion of the school district and N.H. to certify two questions of law for appeal pursuant to Minn. R. Civ. App. P. 103.03(i) (providing that district court may certify "important and doubtful" questions presented, in context of order denying motion to dismiss for failure to state claim). In February and March 2020, amici curiae filed eight amicus curiae briefs in support of N.H. This appeal follows.

ISSUES

I. Are the district court's certified questions important and doubtful?

II. Did the district court err by denying the school district's motion to dismiss N.H.'s claim for failure to state a claim upon which relief can be granted? A. Does a transgender high-school student who is denied use of a locker room that is available to students of the gender with which the student identifies and to which the student has socially transitioned state a claim upon which relief can be granted of sexual-orientation discrimination under Minn. Stat. § 363A.13, subd. 1?

B. Does a transgender high-school student who is denied use of a locker room that is available to students of the gender with which the student identifies and to which the student has socially transitioned state a claim upon which relief can be granted of an equal-protection violation under article I, section 2 of the Minnesota Constitution?

ANALYSIS

I.

The district court's...

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