Federal appeals court sides with transgender girl in school bathroom dispute

By | 2017-04-24T09:58:35+00:00 Tuesday, December 20, 2016|

A divided federal court of appeals recently ruled 2-1 that a transgender female student in Ohio will be allowed to continue using a girls’ restroom for now.

The case is one of many court battles being waged nationwide over whether Title IX of the Education Amendments of 1972 protects transgender students through existing civil rights bans on sex discrimination in federally funded programs.

In a per curiam opinion, the United States Court of Appeals for the 6th Circuit’s majority held that allowing Jane Doe, an 11-year-old transgender female, to use the girls’ restroom at school would serve the public interest by protecting her constitutional and civil liberties.

The case stemmed from a preliminary injunction passed down by the United States Court of Appeals for the Southern District of Ohio at Columbus ordering the Highland Local School District and its board of education to allow Doe to use the restroom of her choosing.

The school district asked the 6th Circuit court to stay the injunction but the two-judge majority declined.

“To demonstrate a likelihood of success on the merits, (Highland) must show, at a minimum, serious questions going to the merits,” the majority wrote. “While the Supreme Court has stayed a similar case from another circuit (GG ex rel. Grimm v. Gloucester Cty. Sch. Bd.) that fact does not satisfy the test required of us here, and does nothing more than show a possibility of relief, which is not enough to grant a stay.”

The circuit court’s majority held that Doe’s personal circumstances differentiated her case from the Gloucester County case out of Virginia in which the Supreme Court sided with the school district and granted a stay of a preliminary injunction, pending review.

The high court is expected to issue a definitive opinion in that case in 2017.

According to court documents, Doe has exhibited mental health issues and “unique vulnerabilities” and has been using the girls’ restroom for six weeks, which has “greatly alleviated her distress.”

“Permitting Highland to again single her out and disrupt the status quo, is distinct from the stay granted in Gloucester County, which maintained the status quo as opposed to disrupting it,” the majority held. “Maintaining the status quo in this case would protect Doe from the harm that would befall her if the injunction is stayed.”

The reviewing court noted that, under settled law, “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.”

It also held that Doe would suffer “irreparable harm” and a violation of her civil and constitutional rights if she were to be prohibited from using the girls’ restroom.

“Highland’s exclusion of Doe from the girls’ restrooms has already had substantial and immediate adverse effects on the daily life and well-being of an 11-year-old child, i.e. multiple suicide attempts prior to entry of the injunction,” the majority wrote.

The circuit court held that the injuries to Doe were not “distant or speculative” and that staying the injunction would “disrupt the significant improvement in Doe’s health and well-being” and “further confuse a young girl with special needs who would no longer be allowed to use the girls’ restroom.”

The court also held that “public interest weighs strongly in favor” of Doe due to the preservation of constitutional and civil privileges.

The majority concluded by denying Highland’s motion to stay the injunction.

In his dissent, Judge Jeffrey Sutton wrote that Doe should be treated exactly as the plaintiff in the Gloucester County case because the Supreme Court granted the stay of an injunction pending further review.

According to Sutton, lower courts should not resolve transgender issues under Title IX until the high court makes a ruling.

“The Supreme Court presumably will resolve the Title IX issue in 2017,” Sutton wrote. “In the meantime, the court has indicated that we should wait for further instructions before granting relief on these sorts of claims.

“These lawsuits pose novel questions and, if successful, will require novel changes to school restrooms and locker rooms. If past is precedent, the court does not want a patchwork of provisional answers to emerge while it deliberates.”

Judges Damon Keith and Bernice Donald formed the per curiam majority denying Highland’s motion to stay the preliminary injunction.

The case is cited Bd. of Educ. of Highland Sch., et al. v. United States Dep’t of Educ., et al., Case No. 16-4117.



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