Repeated Victories in the Fight for Trans Students’ Rights During Summer 2018

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By Chan Tov McNamarah. This article appears in the Summer Issue of LGBT Law Notes, the most comprehensive monthly publication covering the latest legal and legislative developments, here and abroad. Subscribe:

The summer of 2018 saw a wave of transgender rights victories in the public school ‘bathroom wars,’ as courts across the nation defended the right of transgender students to use facilities that match their gender identity. The slate of four victories during June through early August — Parents for Privacy v. Dallas School District №2, 2018 WL 3550267, 2018 U.S. Dist. LEXIS 123567 (D. Ore., July 24), from Oregon, Doe v. Boyertown Area School District, 2018 U.S. App. LEXIS 20848, 2018 WL 3583578 (3rd Cir., July 26 [revised version of earlier decision issued on June 18, 2018]), from Pennsylvania, Adams v. School Board of St. Johns County, 2018 U.S. Dist. LEXIS 125127, 2018 WL 3583843 (M.D. Fla., July 26), from Florida, and J.A.W. v. Evansville Vanderburgh School, 2018 WL 3708049, 2018 U.S. Dist. LEXIS 130532 (S.D. Ind., August 3), from Indiana — provides several opportunities to analyze emerging trends. The cases provide a platform to consider the changing shape of litigation involving transgender students and sex-segregated facilities: while the landscape was previously dominated by cases brought by, or on behalf of transgender students trying to gain access to the appropriate facilities, a steadily growing number of cases are being brought by cisgender persons, urged on by religious conservatives, pushing back against trans-affirmative policies that school districts have put in place. Two of the four cases this summer fell into the latter category.

The four cases also provide an opportunity to consider the changing arguments in transgender student litigation and their viability. Although the four opinions are united in the conclusion that allowing transgender students to use facilities consistent with their gender identity does not conflict with the privacy rights or safety of cisgender students, the cases part company on whether Title IX requires trans-affirmative bathroom policies. Three of the cases squarely held that Title IX requires schools to grant transgender students access to facilities consistent with their gender identity, and while the fourth, the only appellate ruling from among them — Doe v. Boyertown, comes close, it stops short from taking this position.

Arguments against trans-affirmative policies have also developed recently. As courts have demonstrated the hollowness of arguments based on “safety” or “privacy interests,” schools seeking to deny access to sex-segregated facilities based on gender identity, have introduced arguments based on genderfluidity. That is, the schools argue that they are unable to determine whether students’ claims of gender fluidity are credible, and thus must require students to use biological gender or gender-neutral restrooms. Additionally, taking their cue from the Supreme Court’s June 4 Masterpiece Cakeshop decision, litigants against trans-affirmative policies have begun to assert religiously-based arguments against sharing facilities with trans students — stating that their religious beliefs forbid them from sharing facilities with members of the opposite sex. While neither of these arguments proved fruitful in this summer’s set of cases, the arguments likely signal the direction opponents of transgender equality may consider in future litigation. Individual analysis and commentary on each case follows.

1. Parents for Privacy v. Dallas School District №2 — On July 24, U.S. District Judge Marco A. Hernández dismissed numerous constitutional and statutory challenges to a Dallas (Oregon) School District policy that allows transgender students to use bathrooms and locker rooms in line with their gender identity. The decision rejected plaintiffs’ desperate attempts at dismantling trans-affirmative protections and held unequivocally that restricting transgender students to use facilities which are gender-neutral or match their biological sex violates Title IX.

In September 2015, a transgender student (to whom the opinion refers as Student A) requested that the School District grant him permission to use the male facilities at his high school. In November 2015, the District responded by implementing a student safety plan which allowed all transgender students to use the high school’s locker rooms, restrooms, and showers consistent with their gender identity. As a result, Student A began using the boys’ facilities at his high school.

Retaliating to the Plan and Student A’s presence in the male facilities, Plaintiffs — students at the high school and their parents — filed a comprehensive lawsuit with eight constitutional and statutory claims. The suit challenged the legality of the plan, sought to enjoin the District from enforcing the Plan, and requested that the court order the District to affirmatively require students to only use the facilities that match their biological gender. Incredulously, the complaint also took aim at the federal government, contending that the U.S. Department of Education (USDOE) violated the Administrative Procedure Act (APA), the Religious Freedom Restoration Act (RFRA), and the First Amendment’s Free Exercise Clause by issuing federal Guidelines that “redefine[ed] the word ‘sex’ as used in Title IX to include gender identity.”

The opinion consolidated the plaintiff’s eight claims into six broad categories: (I) APA claims; (II) right to privacy claims; (III) Title IX claims; (IV) Oregon state law claims; (V) claims based on parents’ rights to direct the education and upbringing of their children; and (VI) those based on the First Amendment and RFRA.

First, the plaintiffs contended that the federal defendants violated the APA by promulgating and enforcing guidance that redefined the term ‘sex’ in Title IX to include ‘gender identity.’ The plaintiffs’ principal argument was that they “suffered a legal wrong as a direct result” of USDOE’s May 2016 “Dear Colleague Letter” which required access to sex-segregated facilities based on gender identity. They contended that the District’s Plan was a “direct result” of USDOE actions.

Judge Hernández easily dismissed this contention. Looking to the sequence of events, he noted that the Plan was enacted in November 2015 — months before the 2016 Dear Colleague Letter. He further observed that in February 2017 the USDOE and the Justice Department (under leadership appointed by the Trump Administration) explicitly issued a joint “Dear Colleague Letter” withdrawing the earlier policy and guidance reflected in the May 2016 “Dear Colleague Letter.” As such it was clear that the Plan was enacted in response to Student A’s accommodation request, as opposed to being the result of federal Guidance, and the plaintiffs’ first claim was dismissed.

Relying on the reasoning in Whitaker v. Kenosha Unified Sch. District, 858 F.3d 1034 (7th Cir. 2017) and Doe v. Boyertown (the 3rd Circuit’s earlier decision from June 18), Judge Hernandez held that a transgender student’s presence in the bathroom posed no threat to cisgender students’ privacy interests and he dismissed the plaintiff’s second claim — that the defendants violated the plaintiffs’ right to privacy guaranteed by the U.S. Constitution.

For their Title IX claim the plaintiffs alleged that the Plan created a “sexually harassing hostile environment” for cisgender students. In response, the defendants contended that the mere presence of a transgender student in a bathroom or locker room is insufficient to establish a hostile environment. Moreover, the defendants asserted that the Plan not only comported with Title IX, but that the plaintiffs’ request to bar transgender students would violate the statute.

Here Judge Hernández’s opinion pulled no punches, stating: “Forcing transgender students to use facilities inconsistent with their gender identity would undoubtedly harm those students and prevent them from equally accessing educational opportunities and resources.” Even though this statement could not be more clear, Judge Hernández doubled-down, stressing that any policy limiting transgender students to only gender neutral bathrooms, or those of their biological sex “would punish transgender students for their gender nonconformity and constitute a form of sex-stereotyping,” in violation of Title IX.

The plaintiffs also argued that the Plan violated Oregon statutes prohibiting discrimination in education and public accommodations. They contended that cisgender students who were too embarrassed or ashamed to share spaces with transgender students were “deprived of equal access to school facilities.” Judge Hernández easily dismissed this argument, finding that rather than discriminate against any student, the Plan ensures that all students have access to school facilities.

Taking their cue from movements against LGBTQ equality under the guise of ‘religious freedom,’ the plaintiffs’ fifth and sixth claims alleged that the District’s trans-affirming plan infringed on cisgender student’s religious rights. Specifically, they alleged that: (1) the Plan violated their right to freely exercise their religion; and (2) the Plan violated RFRA.

In their complaint, the plaintiffs claimed that some students “are devout Christians whose faith requires that they preserve their modesty and not use the restroom, shower, or undress, in the presence of the opposite sex.” Because the Plan granted transgender students access to the sex-segregated facilities, it then made it difficult to practice the religiously-mandated modesty, burdening the plaintiffs’ free exercise of religion. However, looking at the text of the Plan, the judge found that the plaintiffs’ free exercise claim lacked standing because the law was both neutral and generally applicable, applying to all students rather than punishing any specific religious beliefs.

The plaintiffs reasserted the students’ religious beliefs in their RFRA claim. Under RFRA, the government may not burden a person’s exercise of religion unless the government can demonstrate the burden is in furtherance of a compelling interest and is the least restrictive means of doing so. Here the plaintiffs alleged that the USDOE guidance violated their exercise of religion. But recalling the failed APA claim, Judge Hernández found insufficient evidence that the government’s action caused the plaintiffs’ alleged injury. Consequently, the RFRA claim was dismissed for lack of standing.

Finding all of the plaintiffs’ claims either baseless or without standing, the judge granted the defendants’ motion to dismiss. Moreover, holding that the plaintiffs could not “plausibly re-allege their claims and that any amendment would be futile,” the judge dismissed the claims with prejudice and denied the requested preliminary injunction.

2. Doe v. Boyertown Area Sch. District — On July 26, the three-judge panel of the Third Circuit Court of Appeals that issued the June 18, 2018, opinion in Doe v. Boyertown Area School District, 893 F.3d 179 (3d Cir. 2018) (Boyertown I), voted to grant panel rehearing, thereby vacating the initial opinion and simultaneously issuing a revised opinion, Doe v. Boyertown Area Sch. District., (as cited above) (Boyertown II). The case involved parents and students seeking to enjoin a Pennsylvania school district’s transgender-affirming policies.

Additionally, in an 8–4 decision, the Third Circuit en banc, rejected the plaintiff’s petition for rehearing on the issue of the preliminary injunction. The four dissenting judges — three of whom are Republican appointees — joined an opinion authored by Judge Kent Jordon taking issue with the three-judge panel’s original suggestion that forcing transgender students to use single-user or biological-sex corresponding bathrooms would itself be a Title IX violation.

In Boyertown I, the defendant school district argued that Title IX compelled it to implement policies that allowed transgender students access to facilities corresponding to their gender identities. The opinion, written by Judge Theodore A. McKee, appeared to favor this argument, noting that Title IX prohibited the court from “issu[ing] an injunction that would subject transgender students to different conditions than their cisgender peers are subject to.” Boyertown I, 893 F.3d 179, 199 (3d Cir. 2018) (vacated by order of July 25, 2018).

The revised opinion, Boyertown II, is largely the same as its predecessor, with only minor edits aimed to temper aspects of the initial opinion that discussed Title IX’s affirmative application to transgender students. Specifically, in one passage the revised opinion acknowledged the school district’s Title IX argument but declined to address the viability of the claim, noting instead: “We need not decide that very different issue here.”

The modified opinion seems prompted by the objection of the four judges who dissented from the vote to reject rehearing en banc. In the July 26 dissent, Circuit Judge Jordan argued that Boyertown I’s support of the school district’s Title IX arguments “went beyond what was necessary.” He also strongly cautioned the court against addressing “tangential arguments” and “wading into fraught waters.” Instead, the judge warned that “reasonable people can and will disagree about the most appropriate way to address transgender students’ desire to select which bathroom or locker room to use.”

While Jordan rightly noted that the Supreme Court has not considered the application of Title IX to gender-identity discrimination, as the other cases in this note demonstrate, lower courts have begun to speak in unison. To this writer, it seems, then, that most “reasonable people” are in agreement as to how to address transgender students’ desire to affirm their gender identity through using facilities that match their gender.

3. Adams v. School Board of St. John’s County, Florida — On July 26, a Middle District of Florida decision by District Judge Timothy J. Corrigan vindicated a transgender high school student’s right to use his school’s male facilities. The opinion held that the School Board’s policy preventing him from using the bathroom in line with his gender identity violated both Title IX and Equal Protection Clause.

In 2015, the defendant, the School Board of St. Johns County, Florida, implemented a policy that stipulated that transgender students could use gender neutral facilities, but would not be allowed access to those “of the opposite biological gender.” The plaintiff, Drew Adams, attended school within the School Board’s district. Since 2004, Adams has undertaken medical, legal, and social steps to transition. During his junior year, Adams began using the boys’ restroom. When this was reported to administrators by other students, Adams was advised that he could use only gender-neutral or female-designated facilities at the school. The present lawsuit ensued with Adams alleging that the School Board’s bathroom policy violated his rights under the Equal Protection Clause as well as Title IX.

Judge Corrigan began his opinion by addressing Adams’ Equal Protection Clause claim, stating that intermediate scrutiny applied. Under such scrutiny, the defendant must show that its gender classification “is substantially related to a sufficiently important government interest” and the justification for the policy is “exceedingly persuasive.”

The School Board contended that its bathroom policy protected student privacy and safety. But Corrigan was unconvinced, failing to see how allowing transgender students to use the restrooms of their choice affected either interest. He pointed out that the defendant had failed to introduce any evidence suggesting that having a transgender-affirming bathroom policy exposed students to an invasion of bodily privacy. Moreover, the judge found the defendant’s safety concerns unwarranted since transgender students were no more likely than cisgender students to demonstrate untoward behavior in in the bathroom. Failing to demonstrate the requirements of intermediate scrutiny, Corrigan held that the School Board violated Adams’ rights under the Equal Protection Clause.

The School Board next argued that the policy did not violate Title IX because the statute did not cover gender identity discrimination, and because Title IX permits sex-segregated bathrooms. Judge Corrigan swiftly rejected both arguments. He began by recounting the growing list of cases recognizing Title IX protection for transgender students, concluding that Title IX clearly covered the issue before the court. The judge then found the contention that Title IX protected the schools’ right to provide segregated bathrooms was irrelevant, since Adams’ only argument was that he is a boy who should be permitted to use the boys’ restroom — not that bathrooms should be sex-desegregated. Relying on the reasoning in Grimm (4th Circuit) and Boyertown (3rd Circuit), Judge Corrigan then held that the School Board’s policy violated Title IX.

Finding that the School Board’s bathroom policy violated Adams’ Title IX and Equal Protection rights, the judge awarded Adams $1,000.00 in compensatory damages and granted an injunction preventing the School Board from enforcing its unlawful bathroom policy.

The most interesting aspect of Adams is the School Board’s gender fluidity argument: that it implemented a restrictive policy because it could not determine how to address students who may vacillate genders and therefore vary their bathroom choice, or those who may deceptively claim to do so. For the most part, Judge Corrigan’s opinion punted on this “complicated issue.” But to this author the issue seems to be one of procedure rather than gender identity. If, for example, the school grants students permission to use the facilities on a case-by-case basis as proposed in Boyertown, it seems as if administrators would be able to deter false claims of transgender or gender fluid identity. Moreover, with the appropriate disciplinary measures in place, any student — regardless of gender identity — who behaves inappropriately in the restroom would be punished, eliminating the necessity for a “blanket ban” bathroom policy. Hopefully courts will address these arguments head on in the future.

4. J.A.W. v. Evansville Vanderburgh School. — On August 8, a Southern District of Indiana decision by District Judge William T. Lawrence granted a preliminary injunction allowing a transgender high school student to use the facilities in line with his gender identity. The decision favored the plaintiff’s Title IX and Equal Protection claims, while rejecting the defendant School’s attempts to distinguish Whitaker v. Kenosha Unified Sch. Dist. №1 Bd. of Education.

Plaintiff J.A.W. is a seventeen-year-old transgender male attending North High School in the Evansville Vanderburgh School Corporation (EVSC). During his freshman year, J.A.W. began using the male facilities to change before and after gym class. After learning of this practice, EVSC instructed J.A.W. to use the female facilities or a gender-neutral alternative in the school nurse’s office.

During his sophomore year, J.A.W. approached the principal with the 2016 “Dear Colleague Letter” that instructed schools to allow transgender students access to facilities that align with their gender identity. EVSC reviewed the letter, but ultimately denied J.A.W. access to the appropriate facilities. In January 2018, during J.A.W.’s junior year, his attorney contacted the school and informed them that pursuant to the Seventh Circuit’s decision in Whitaker, J.A.W. was entitled to use the male facilities. When EVSC’s general counsel responded that Whitaker was distinguishable on the facts, the present lawsuit ensued.

At trial, J.A.W. moved for a preliminary injunction allowing him to use the male facilities, arguing that EVSC’s restrictions infringed on his Equal Protection and Title IX rights.

With respect to J.A.W.’s Title IX claim, EVSC attempted to distinguish Whitaker, arguing that the case did not prohibit schools from requiring parental request or some evidence that access to such facilities is medically necessary for the individual student. Judge Lawrence made quick work of this argument. First, he noted that in the most fundamental sense Whitaker was indistinguishable from the present case. Moreover, he pointed out that EVSC’s decision to prohibit J.A.V. from using the male facilities was not based on a lack of parental request or evidence of medical necessity, and thus both arguments were “irrelevant to the issue.” Consequently, the judge found that J.A.W. established a reasonable likelihood of success on the merits of his Title IX claim.

Turning to the Equal Protection claim, Judge Lawrence first recalled that Whitaker had applied heightened scrutiny with respect to school policies restricting transgender students’ use of facilities. EVSC asserted that its practices were justified to prevent “disruption,” and the related safety and privacy concerns. Judge Lawrence expressed skepticism towards claims of “disruption.” In his opinion, J.A.W.’s masculine appearance was more likely to cause a disruption in the female facilities than the male facilities. The judge then dismissed EVSC’s safety concerns due to a lack of evidence, finding no evidence that transgender students posed any threat to cisgender student safety. As such, the judge found that J.A.W. also demonstrated a probability of success on his Equal Protection claim.

Turning to the inadequate remedy and irreparable harm prongs of the preliminary injunction standard, Judge Lawrence found credible J.A.W.’s testimony of the discomfort and distress he experienced when forced to use the female facilities. Based on this testimony, the judge found “that the likely negative emotional consequences of being denied access to the boys’ restroom at school would constitute irreparable harm” to J.A.W.

Finding all of EVSC’s safety and privacy arguments to be without merit, and that J.A.W. had demonstrated the likelihood of harm if an injunction was not granted, Judge Lawrence held that the balance of harms weighed in favor of granting a preliminary injunction allowing J.A.W. the right to use the boys’ facilities at his school.

In an August 18 press release, EVSC’s counsel indicated the defendants’ intention to appeal the decision.

[Counsel for the transgender students in the affirmative litigation cases are Gavin Minor Rose, Jn P. Mensz, and Kenneth J. Falk of the ACLU of Indiana in J.A.W. and Erica Adams Kasper, Aryeh L. Kaplan, Jennifer G. Altman, Markenzy Lapointe, Shani Rivaux, of Pillsbury Winthrop Shaw Pittman, Miami, Fl; Kirsten L. Doolittle, Jacksonville, FL; Nathaniel R. Smith, Richard M. Segal, Pillsbury Winthrop Shaw Pittman LLP, San Diego, CA; Omar Gonzalez-Pagan, Lambda Legal Defense, New York, NY; Paul David Castillo, Shani Rivaux, Lambda Legal Defense and Education Fund, Inc., Dallas, TX; and William C. Miller, Pillsbury Winthrop Shaw Pittman, LLP, Washington, DC., for Drew Adams. In the cases brought by students and parents challenging trans-affirmative school policies, intervenors defending the interests of the transgender students include lawyers from the ACLU Foundation of Oregon, the ACLU’s national LGBT rights project, and local pro bono counsel in Parents for Privacy, and an extraordinary array of intervenors and amici in the 3rd Circuit Boyertown case, including attorneys from the ACLU, Lambda Legal, the National Center for Lesbian Rights, and numerous educational and civil rights organizations. The Alliance Defending Freedom is a moving force behind plaintiffs in the students/parents cases. Consistent with its current position that Title IX does not apply to gender identity claims, the Trump Administration has begun filing briefs in opposition to the transgender rights claims in Title IX cases. — Editor]

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.

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