On September 26, 2016, Judge Algenon L. Marbley in the United States District Court for the Southern District of Ohio, Eastern Division, issued the first decision by an Ohio court regarding a transgender student’s right to access school facilities based on the gender with which the student identifies, in Board of Education of the Highland Local School District v. United States Department of Education et al., Case No. 2:16-CV-524.
Factual and Procedural Background
The student at issue, identified by the Court as Jane Doe, currently is an eleven-year-old student in the Highland Local School District (“District”). Jane is a transgender girl, meaning she is biologically male but identifies as female. In 2012, when Jane entered the first grade, her parents, identified by the Court as Joyce and John Doe, requested that the District treat Jane as female. The District agreed to address Jane by her female name and use the female pronoun when referring to her. However, the District had 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.” Accordingly, the District permitted Jane to use an individual restroom typically used by staff members, but did not permit Jane to use the girls’ restroom.
In December of 2013, Joyce filed a complaint with the Office for Civil Rights (“OCR”) alleging the District was discriminating against Jane by requiring her to use the individual restroom instead of the girls’ restroom. The complaint subsequently was amended to further allege that the District subjected Jane to harassment from staff members who referred to Jane as a boy and used the male pronoun.
On March 29, 2016, OCR notified the District that its policies toward Jane violated Title IX, and presented the District with a proposed resolution agreement that would require the District to grant Jane access to restrooms and other school facilities consistent with her gender identity. The District refused to enter into the resolution agreement. OCR subsequently issued a letter of findings against the District and a letter of pending enforcement action, which indicated that OCR would either begin proceedings to suspend or terminate the District’s federal funding, or would refer the matter to the Department of Justice to initiate a lawsuit. For the 2015-2016 school year, the District received $1,123,390 in federal funds out of $15,400,000 budget.
District’s Motion for a Preliminary Injunction
On June 10, 2016, after the District had rejected the proposed resolution agreement, the District commenced this lawsuit by filing a complaint against the Department of Justice (“DOJ”), Department of Education (“DOE”), and other federal officials. In that regard, the District sought a preliminary injunction to prevent the DOE and DOJ from: (1) enforcing their interpretation that the term “sex” means “gender identity” under Title IX, and (2) requiring the District to provide transgender students with access to school facilities and overnight accommodations that are consistent with their gender identity.
The Court denied the District’s motion for a preliminary injunction, finding that it did not have jurisdiction. Specifically, the Court determined the District was required to exhaust its administrative remedies through OCR’s enforcement proceedings before it could seek review of the matter by a court.
Jane Doe’s Motion for a Preliminary Injunction
On July 21, 2016, Jane and her parents moved to intervene in this lawsuit, and the Court granted her motion. Jane alleged the District had violated her right to equal protection under the laws and her right to be free from sex discrimination, and sought a preliminary injunction requiring the District to “treat her as a girl and treat her the same as other girls, including using her female name and female pronouns and permitting Jane to use the same restroom as other girls at Highland Elementary School during the coming school year.”
The Court granted Jane’s motion for a preliminary injunction and ordered the District “to treat Jane Doe as the girl she is, including referring to her by female pronouns and her female name and allowing her to use the girls’ restroom at Highland Elementary School.”
Notably, the Court referenced the preliminary injunction recently issued in Texas, et al. v. United States, et al., N.D. Tex. No. 7:16-cv-00054-O, 2016 WL 4426495 (Aug. 21, 2016), which prohibited the DOE and DOJ from enforcing its May 2016 guidance regarding transgender students. The Court determined the Texas preliminary injunction did not apply to this case because Ohio was not a party to Texas, and this case began prior to that preliminary injunction. The Court continued by noting its determination was consistent with the United States Supreme Court’s statement that “injunctive relief should no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs” and further stated that, “to construe otherwise would prevent other district courts and courts of appeal from weighing in on the important issues presented in this case….” As such, the Court did not apply the Texas preliminary injunction in this case.
This case demonstrates that the law regarding transgender students’ access to school facilities is far from settled. School districts should work closely with their legal counsel when addressing issues regarding transgender students’ rights, as they can expect the law in this area to continue to evolve as these cases work their way through the judicial system.