Outside the Beltway

Federal Judge In Indiana Rules In Favor Of Transgender Student

Another Federal Judge has ruled in favor of a transgender student seeking the right to use the gender that conforms to the gender they identify with.

Doug Mataconis · Friday, August 10, 2018 · 14 comments

Another Federal Judge has ruled in favor of a transgender student seeking to be able to use the school restroom facilities that correspond to their gender identity:

A federal judge has ruled that an Indiana school district must allow a transgender student to use the bathroom that corresponds with his gender identity.

Judge William Lawrence in Indianapolis issued a preliminary injunction on Friday requiring the Evansville Banderburgh School Corp. (EVSC) to allow a transgender high school student to use male bathrooms, The Courier & Press reported on Monday.

The student, identified by his initials, J.A.W., filed a lawsuit through the American Civil Liberties Union (ACLU) in February.

J.A.W. argued that the school district was violating his rights under the Equal Protection Clause of the 14th Amendment and Title IX when he was told he had to use either the women’s restrooms or a private bathroom near the nurse’s office.

The student, who was born female, was diagnosed with gender dysphoria and prescribed hormone medications, according to the newspaper.

He testified in a July 20 hearing that the school was very accommodating when he approached them with other requests, including how he would be addressed.

The high school student, however, was allegedly told he could be disciplined for using male restrooms.

EVSC attorney Pat Shoulders said during last month’s hearing that a child’s birth certificate is used to determine bathroom usage, something he called “an objective standard.”

Changing that policy “would result in chaos,” Shoulders said at the hearing, adding that the student could use the male bathrooms if his legal documentation was changed from female to male.

The student was born outside Indiana in a state that will not change the gender identification on a birth certificate without documented surgery, the newspaper noted.

The ACLU argued that transgender students can face increased bullying if they are denied access to the bathroom that corresponds with their gender identity. Some students may avoid using the restroom entirely throughout the school day, the group said.

The judge agreed and found that J.A.W.’s claims of discrimination were “likely to prevail.”

“The likely negative emotional consequences of being denied access to the boys’ restrooms at school would constitute irreparable harm to J.A.W.,” Lawrence wrote in his ruling.

More from the Courier and Post in Indiana:

EVANSVILLE, Ind. — As Evansville Vanderburgh School Corp. students return to the classroom Wednesday, a student is now permitted to use the restroom consistent with his gender identity after an Indianapolis judge ruled in his favor.

U.S. District Judge William Lawrence of Indianapolis issued a preliminary injunction Friday that requires the EVSC allow a transgender high school student who identifies as male to use male restrooms, according to an American Civil Liberties Union of Indiana news release. EVSC attorney Pat Shoulders said he will appeal the injunction.

The 17-year-old transgender male filed a lawsuit through the ACLU in February suing the EVSC over student bathroom access. Identified in the suit by initials J.A.W., the student argued his rights were violated under the 14th Amendment and Title IX after school administrators reportedly told him to use either women’s restrooms or a private bathroom connected to the nurse’s office, or he may be disciplined.

Lawrence ruled the preliminary injunction was justified as J.A.W. was “likely to prevail” in his claim the refusal to allow him to use male restrooms violated his rights.

“The likely negative emotional consequences of being denied access to the boys’ restrooms at school would constitute irreparable harm to J.A.W.,” Lawrence said in a statement.

In a statement, the EVSC said: “We remain committed to maintaining safe and caring learning environments for all of our students.”

Shoulders said the preliminary injunction, by definition, is preliminary and means the order is in effect until there is a final ruling.

“This ruling pertains to one student and one student only out of the 23,000 who will begin the school year on Wednesday,” Shoulders said. “The EVSC will continue as it has in the past to comply with Indiana law and Indiana Department of Education regulations. All federal statutes as interpreted by the U.S. Justice Department and the U.S. Department of Education. All of which seem to suggest that sex is determined biologically not psychologically.”

J.A.W. was diagnosed with gender dysphoria, which the American Psychiatric Association defines as a conflict between a person’s physical or assigned gender and the gender with which the person identifies. J.A.W. is taking hormones under a physician’s care to develop male characteristics.

ACLU of Indiana Attorney Ken Falk said the judge’s decision “affirms denying a student his right to use the correct restroom is discrimination, plain and simple.”

“This is consistent with the great wealth of authority and many Indiana school corporations follow the law in this regard,” Falk said in a statement. “I would hope that with this decision those Indiana school corporations that continue to have discriminatory policies in place will take heed and change them without the need for litigation.”

(…)

In late July, J.A.W. sought a preliminary injunction for use of the men’s restroom when school starts Wednesday. Only two people testified during the 90-minute hearing in Evansville on July 20: J.A.W. and EVSC Superintendent David Smith.

During testimony, the teen told Shoulders all requests he has made to the school district, such as how he should be addressed and how he may dress, have been accommodated, except for his desire to use the male restroom.

The student also told Shoulders his driver’s license and other legal documents still designate him as female.

Smith said repeatedly during his July 20 testimony the school district has an “objective standard” in bathroom usage, and a child’s birth certificate is the standard.

Smith said under Falk’s questioning that J.A.W. could be disciplined for using the men’s restroom. Smith said he did not learn until mid-June of the student’s gender dysphoria diagnosis.

Smith testified if a birth certificate or a comparable document was changed to identify the student as male, then the student could use the male restroom. However, Falk stated J.A.W. was born outside of Indiana in a state that doesn’t change birth certificate gender identification unless a surgery takes place.

Smith testified if schools used “subjective rule” in governing bathroom policy “it would result in chaos.”

This ruling is just the latest example of a long series of court victories for transgender rights over the past several years. Most recently, a Federal Judge in Oregon rejected efforts by a group of parents to block a school district policy that permits transgender students to use the restroom that confirms to their gender identity. Two months earlier, a Federal Judge in Virginia breathed new life into the case of Gavin Grimm, a transgender student in Glouster County, Virginia who was challenging the school district’s policy that barred him from using the male restroom facilities notwithstanding the fact that he is genetically female. Grimm had previously won his argument before both the District Court and the Fourth Circuit Court of Appeals, but his case was sent back to the District Court by the Supreme Court rather than receiving a ruling on the merits. The new ruling in Grimm’s favor sets the case up for an eventual return to the Supreme Court. At the same time as the decision in the Grimm case, the Third Circuit Court of Appeals upheld the policy of a suburban Philadelphia area school district that allowed transgender students to use the restrooms that match the gender they identify with. In another case handed down earlier this year, a Federal Judge in Maryland ruled in favor of a transgender student whose school district had sought to bar her from using the restroom facilities that matched her gender identity. Another victory for transgender rights came in December of last year when a District Court Judge in Illinois ruled in a case similar to the one in Oregon that had been brought by a group of parents seeking to bar a school district from enacting a policy that allowed transgender students to use the bathroom and locker rooms matching their gender identity. In that case, the Judge sided with the school district and the transgender student at the center of the case, and against the parents seeking to overturn the policy. In May of last year, meanwhile, the Seventh Circuit Court of Appeals ruled in favor of a Wisconsin student who had sued his school district after it sought to bar him from using the restroom facilities that match his gender identity.

In his ruling, Judge Lawrence, who was appointed by President George W. Bush, follows a path similar to that found in the other cases dealing with discrimination based on gender identity. On the statutory side, for example, he found that J.A.W., the student in this case, raised a sufficient claim under both Title VII and Title IX for discrimination based on sex. In doing so, Lawrence relies heavily on both the recent court ruling from other jurisdiction involving transgender Plaintiffs and on the Supreme Court’s ruling in a 1989 case called Price Waterhouse v. Hopkins. In that case, the Supreme Court found in favor of a female Plaintiff who had maintained that she had been denied partnership in the firm that employed her because she did not into the idea of what a female employee should look and act like. The ruling was significant for the purpose of anti-discrimination law because the Court ruled that sex discrimination under the Civil Rights Act included gender stereotyping and the action of discriminating against someone because they didn’t fit into some preconceived notion of what a person of a certain biological gender should be like was barred by Federal law. Based on the Price Waterhouse precedent and on the previous court rulings on this issue, Lawrence found that the student in had asserted a viable claim under Title VII and Title IX in that discrimination against people who identify with a gender different from their biological sex violated those laws because discrimination on that basis was, in effect, impermissible gender stereotyping. As I’ve said in the past, I am skeptical of this statutory interpretation based on the fact that it seems clear that the drafters of Title VII and Title IX, upon further reflection though, and based in no small part on conversations that have taken place in the comment threads of my posts on these cases in the past, I’ve begun to think that the Price Waterhouse precedent, if it stands, does give transgender Plaintiffs a strong case to argue that they fall within the boundaries of the protected class of “sex” as set forth in the relevant civil rights laws. Whether that remains the case will depend in large part on whether or not the argument withstands appeal to higher courts and, ultimately at some point, the Supreme Court.

In addition to the statutory ruling, Judge Lawrence also followed the lead of Judge Wright Allen in Virginia in finding that J.A.W.’s rights under the Equal Protection Clause of the 14th Amendment had been violated by the policy. As I explained in my post earlier this year on the lawsuit that the N.R.A. filed regarding Florida’s new law barring gun sales to anyone under 21, claims under this provision of the Constitution are evaluated based on differing levels of scrutiny. In this case, Judge Lawrence agreed with Judge Russell in Maryland that discrimination based on gender identity must be judged based on so-called “heightened” or “intermediate” scrutiny, meaning that the jurisdiction defending the law being challenged must show that it furthers an important government interest by means that are substantially related to that interest. Based on that standard, Lawrence finds that the student’s claims do raise a valid claim that is likely to succeed. As in the Maryland case, it strikes me that the Constitutional argument under the 14th Amendment is much stronger than the statutory claim. Indeed, one could say that even under the low standard of the “rational basis” test, the arguments against allowing transgender students or others to use the bathroom of the gender they identify with do not withstand scrutiny. Under the much more stringent “intermediate” or “heightened” scrutiny standard, the policy certainly doesn’t withstand scrutiny and clearly must be struck down.

The school district has already indicated that it intends to appeal this decision, but on some level that seems unwise or at the very least a waste of time. Indiana is part of the Seventh Circuit Court of Appeals and, as I have already noted above, a panel of that Court has already ruled in favor of a transgender student from Wisconsin on issues that are essentially identical to those at issue here. Unless the school district can find some factual basis to differentiate this case from that one, which seems unlikely, or if they are able to make some argument to differentiate this case legally, the panel that hears their appeal will be bound by the ruling in the previous Seventh Circuit case and will in all likelihood rule in favor of the student here. From there, or the student in the seemingly unlikely event that the Seventh Circuit decides to go against its own precedent, the school district will have to decide if they want to find a way to resolve this dispute by accommodating the student’s request or if they want to appeal this case to the Supreme Court, which may or may not accept the case for review. Given all of that, the easiest and least expensive option may simply be to accommodate the request of this student and others similarly situated, and thus avoid the time and money that would be spent on litigation.

Here’s the opinion:

J.A..W. v. Evansville Vanderburgh School District Opinion by Doug Mataconis on Scribd