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Pennsylvania District Judge Refuses to Dismiss Transgender Student’s Title IX and Equal Protection Claims

Posted on: November 24th, 2017 by Art Leonard No Comments

U.S. District Judge Robert D. Mariani denied a school district’s motion to dismiss Title IX and Equal Protection claims by a transgender elementary school student in A.H. v. Minersville Area School District, 2017 U.S. Dist. LEXIS 193622, 2017 WL 5632662 (M.D. Pa., Nov. 22, 2017).  The court rejected the school district’s argument that in light of the Trump Administration’s “withdrawal” of a Guidance issued by the Obama Administration on protection for transgender students under Title IX, the complaint failed to state a valid claim.

A.H., the eight-year-old plaintiff (whose suit was brought by “her next best friend and mother, Tracey Handling”), classified male at birth, “was diagnosed with gender dysphoria while in kindergarten,” wrote Judge Mariani, explaining, “Under the care of a pediatric psychologist, Plaintiff and her family have been exploring ways for Plaintiff to express her gender identity at home, in school, and in the community. . . Since beginning kindergarten in 2014, Plaintiff has continuously presented herself both in and out of school as a female.  Plaintiff uses a female name, dresses in clothing traditionally associated with females, is addressed using female pronouns, and is known to her classmates as a female student.”  Even though A.H.’s mother, supportive of her daughter’s needs, asked that she be allowed to use the girls’ bathroom in school, the School Superintendent, Carl McBreen, said they would not allow it in order to protect the privacy of other students.

This was not a problem during kindergarten, since the kindergarten classroom has a single-use bathroom used by all the students, and the only adverse problem during A.H.’s kindergarten year came during a field trip, when teachers required A.H. to wait until all the boys had used a male-designated bathroom and then allowed A.H. to use that bathroom. “The incident upset Plaintiff and resulted in some of her classmates asking her why she, as a girl, was using the boys’ bathroom.”  A.H.’s mother questioned the principal about this.  His response was that it was “school policy that a child must use the bathroom that corresponds with the sex listed on the child’s birth certificate,” and talked about “protecting” the other students from A.H.  However, despite repeated requests, the school never showed A.H.’s mother an actual written policy.  Her request to allow A.H. to use girls’ bathrooms during A.H.’s first grade year was turned down, with Superintendent McBreen stating that “Minersville isn’t ready for this.”  While giving a school tour to Mrs. Handling, the principal referred to A.H. using male pronouns, even after she corrected him.

After the Obama Administration Guidance was distributed to all public school districts, Superintendent Breen informed Mrs. Handling that her daughter could use the girls’ restrooms at school, but the school “has not created any policy on bathroom access for transgender students.” A.H. filed suit seeking a court order to comply with Title IX and Equal Protection requirements.

In its motion to dismiss the Title IX claim, the school first argued that the Trump Administration’s withdrawal of the Obama Administration Guidance left “no legal basis to support a Title IX claim against the school district for transgender discrimination.” After concisely relating the sequence of events surrounding the Obama Administration Guidance and the Trump Administration withdrawal, Judge Mariani, quoting from Evancho v. Pine-Richland School District, 237 F. Supp. 3d 267 (W.D. Pa. 2017), noted that “The 2017 [Trump Administration] Guidance ‘did not propound any “new” or different interpretation of Title IX or [DOE’s restroom regulation], nor did the 2017 Guidance affirmatively contradict the 2015 and 2016 Guidance documents.”  Indeed, the Evancho court had observed, the 2017 Guidance “appears to have generated an interpretive vacuum pending further consideration by those federal agencies of the legal issues involved in such matters.”

“Thus,” wrote Judge Mariani, “the fact that the Department of Justice and the Department of Education withdrew their interpretation of Title IX does not necessarily mean that a school, consistent with Title IX, may prohibit transgender students from accessing the bathrooms that are consistent with their gender identity. Instead, it simply means that the 2016 Guidance cannot form the basis of a Title IX claim.”  Lacking a binding precedent on this issue from the U.S. Supreme Court or the 3rd Circuit Court of Appeals (which has jurisdiction over federal courts in Pennsylvania), Judge Mariani looked to the 7th Circuit’s decision in Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017), as well as the earlier decision from the Western District of Pennsylvania court in Evancho.  He observed that Title IX courts have looked to precedents under Title VII of the Civil Rights Act for guidance in determining the scope of protection under law banning discrimination because of sex, and that both the 7th Circuit and the Evancho court, following such precedents, had concluded, in the words of the 7th Circuit, that “a policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”  The 7th Circuit specifically rejected the argument that providing access to a gender-neutral single user restroom is “sufficient to relieve the School District from liability, as it is the policy itself which violates the Act.”  Similarly, the Evancho court, while noting that the law on this issue was currently “clouded with uncertainty,” determined that the transgender student plaintiffs in that case had “made a more than sufficient ‘showing’ in their Complaint of a right to relief under” Title IX.

Mariani pointed out that the Minersville school district had not attempted in its motion to distinguish these precedents or “present any arguments as to why this Court should not follow their holdings. The Court, further, sees no reason why the analysis and holdings of either Evancho or Whitaker are unsound when applied to the facts of this case.”  Mariani concluded, “Contrary to Defendant’s argument, a specific practice need not be identified as unlawful by the government before a plaintiff may bring a claim under Title IX . . .  Further, while the Court recognizes that the Amended Complaint seems to indicate that Plaintiff now has access to the girl’s bathroom at school and thus may not have alleged any continuing violation of Title IX, that does not undercut the fact that Plaintiff has adequately pleaded that a violation of Title IX occurred as some point in time.”  The judge also rejected the school’s argument that it did not, as a matter of law, have any “discriminatory intent” when it acted.  First, he pointed out, discriminatory intent was not a prerequisite to getting injunctive relief, just damages.  And, in any case, statements attributed to school officials could provide a basis for finding discriminatory intent.

Turning to the Equal Protection claim under the 14th Amendment, Judge Mariani found agreement of the parties that heightened scrutiny would apply to judicial review of the school’s alleged policy and its actions.  As to that standard, which requires the defendant to show that the challenged policy serve an important government objective, Judge Mariani found an absence of proof by the school district.  “Here,” he wrote, “Defendant does not advance any important objective that its bathroom policy served.  Instead, Defendant reiterates its argument that, in the absence of guidance from the government, Defendant made all reasonable efforts to accommodate Plaintiff,” but this argument fails.  “Plaintiff has adequately alleged the existence of a school policy that treated her differently on the basis of her transgender status or nonconformity to gender stereotypes.  As such, she has sufficiently stated a claim for relief under the Equal Protection Clause.”  As constitutional discrimination claims require a showing of discriminatory intent, the judge pointed to statements by school officials that adequately serve at this stage of the case as evidence of discriminatory intent.  Judge Mariani noted the similar rulings in Whitaker and Evancho, while also noting a contrary ruling from several years ago by a different district judge in the Western District of Pennsylvania, Johnston v. University of Pittsburgh, 97 F. Supp. 3d 657 (W.D. Pa. 2015), which for some reason the school district never even cited in support of its motion – perhaps because that opinion is somewhat of an embarrassment.

Judge Mariani was appointed to the court by President Barack Obama in 2011.

A.H. and her mother are represented by David L. Deratzian of Hahalis & Kounoupis PC in Bethlehem, Pennsylvania.

Two Federal Judges Order Public Schools to Let Transgender Students Use Gender-Appropriate Restrooms

Posted on: September 27th, 2016 by Art Leonard No Comments

Within days of each other, two federal district judges have issued preliminary injunctions requiring public schools to allow transgender students to use restrooms consistent with the students’ gender identity. U.S. District Judge Algenon L. Marbley of the Southern District of Ohio, based in Cincinnati, issued his order on September 26 against the Highland Local School District on behalf of a “Jane Doe” 11-year-old elementary school student, in Board of Education v. U.S. Department of Education, 2016 U.S. Dist. LEXIS 131474, 2016 WL 5239829.   U.S. District Judge Pamela Pepper of the Milwaukee-based Eastern District of Wisconsin, issued her order on September 22 against the Kenosha Unified School District on behalf of Ashton Whitaker, a high school student, in Whitaker v. Kenosha Unified School District No. 1, 2016 U.S. Dist. LEXIS 129678, 2016 WL 5372349.  Jane Doe is a transgender girl, Ashton Whitaker a transgender boy.

Although both cases are important, producing essentially the same results under Title IX and the Equal Protection Clause of the 14th Amendment, Judge Marbley’s ruling is more significant because the judge sharply questioned the jurisdictional basis for a nationwide injunction issued on August 21 by U.S. District Judge Reed O’Connor of the Northern District of Texas, Wichita Falls, which ordered the Obama Administration to refrain from initiating investigations or enforcement of violations of Title IX of the Education Amendments of 1972 based on gender identity discrimination.  O’Connor was ruling in a case initiated by Texas in alliance with many other states challenging the validity of the Obama Administration’s “rule” that Title IX, which prohibits sex discrimination by educational institutions that receive federal funds, prohibits gender identity discrimination and requires schools to allow transgender students to use facilities consistent with their gender identity.

Neither the Highland nor Kenosha cases were affected by O’Connor’s order in any event, since these cases were already under way before O’Connor issued his order and they involved district court complaints filed by the individual plaintiffs, not by the Department of Education.

The Doe v. Highland case before Judge Marbley is in part a clone of the Texas case pending before O’Connor. When a dispute arose about the school’s refusal to allow a transgender girl to use the girls’ restrooms and the Department of Education became involved in response to a complaint by the girl’s parents, the school district, abetted by Alliance Defending Freedom (ADF), the “Christian” law firm that is also providing representation to other challengers of the Administration’s position, rushed into federal district court to sue the Department of Education and seek injunctive relief.

As the case progressed, Jane Doe’s parents moved on her behalf to intervene as third-party plaintiffs against the school district. ADF pulled in many of the states that are co-plaintiffs in the Texas case and a clone case brought in federal district court in Nebraska, and moved to make them amicus parties in this case.  At the same time, pro bono attorneys from Pillsbury Winthrop Shaw Pittman LLP, a large firm based in Washington, D.C., together with local counsel from Columbus, Ohio, organized an amicus brief by school administrators from about twenty states in support of Jane Doe.  After being allowed to intervene as a plaintiff, Doe moved for a preliminary injunction to require the Highland Schools to treat her as a girl and allow her to use appropriate restrooms.

Judge Marbley first confronted the federal government’s argument that the court did not have jurisdiction over the Highland school district’s attack on the Administration’s interpretation of Title IX. Unlike Judge O’Connor in Texas, Judge Marbley concluded that the government was correct.  If a school district wants to attack the government’s interpretation of Title IX, he found, it must do so in the context of appealing an adverse decision by the Department of Education ordering it to comply with the interpretation or risk losing federal funding.  Marbley pointed out that under the administrative process for enforcement of Title IX, no school would lose funding before a final ruling on the merits is rendered, a process that would involve administrative appeals within the Department followed by an appeal to the U.S. Court of Appeals with a potential for Supreme Court review of a final ruling by the court.  Thus, the school district had no due process argument that it stood to lose funding without being able to seek judicial relief if it were deprived of the ability to sue directly in the district court.  Marbley found that there was no authorization under the statute or the Administrative Procedure Act (APA) for a school district to file a lawsuit directly in federal district court challenging an interpretation of Title IX.

Part of ADF’s argument in its lawsuits challenging the Obama Administration’s guidance to the school districts is that by not embodying this interpretation in a formal regulation, the Administration had improperly evaded judicial review, since the APA authorizes challenges to new regulations to be filed promptly in federal courts of appeals after final publication of the regulation in the Federal Register. ADF argued that the Guidance was, in effect, a regulation masquerading as a mere “interpretation.”  Judge O’Connor bought the argument, but Judge Marbley did not.

Marbley was dismissive of Judge O’Connor’s determination that he had jurisdiction to hear the Texas case. “The Texas court’s analysis can charitably be described as cursory,” he wrote, “as there is undoubtedly a profound difference between a discrimination victim’s right to sue in federal district court under Title IX and a school district’s right to challenge an agency interpretation in federal district court.  This Court cannot assume that the first right implies the second.”  Marbley went on to discuss in detail Supreme Court rulings on the question whether there was a private right of action under various federal statutes that did not expressly authorize lawsuits in the district courts, and the circumstances under which such authorization can be found by implication, as the courts have done to allow students to file Title IX lawsuits.  Marbley rejected the Highland school district’s argument that once Jane Doe had intervened, she would provide a basis for the court to assert jurisdiction over the school district’s claim.  Actually, he pointed out, the school district could raise its arguments against the Obama Administration’s interpretation of Title IX in response to Jane Doe’s lawsuit, and need not maintain a lawsuit of its own.  Thus, he concluded, the school district’s complaint should be dismissed on jurisdictional grounds.

In both cases, the attorneys for the transgender students argued alternatively under Title IX and under the Equal Protection Clause. In both cases, they argued that because gender identity discrimination is a form of sex discrimination, the Equal Protection analysis should receive the same “heightened scrutiny” that courts apply to sex discrimination claims, which throws the burden on the government to show that it has an exceedingly important interest that is substantially advanced by the challenged policy.

Here the cases diverged slightly in the judges’ legal analysis. Both judges found that the transgender plaintiffs were likely to succeed on the merits of their claims under both Title IX and the Equal Protection clause, that they were suffering harm as a result of the challenged policies, and that any harm the school districts would suffer by issuance of preliminary injunctions was outweighed by the plaintiffs’ harm if injunctions were denied.  In addition, both judges found that the injunctions were in the public interest.  But Judge Marbley additionally found that heightened scrutiny applied, while Judge Pepper, more conservatively, reached her conclusion by applying the rational basis test.  In either case, however, the judges found that the school districts’ justifications for their exclusionary policies lacked sufficient merit to forestall preliminary relief against them.

Significantly, Judge Marbley’s conclusion that heightened scrutiny applied to this case drew support from the Supreme Court’s marriage equality ruling, Obergefell v. Hodges.  He used Obergefell to question the continuing relevance of prior court of appeals analyses of equal protection “in light of Obergefell’s emphasis on the immutability of sexual orientation and the long history of anti-gay discrimination. Like the district courts that examined suspect classification based on sexual orientation,” he continued, “this Court will proceed to conduct its own analysis of the four-factor test to determine whether heightened scrutiny applies to a transgender plaintiff’s claim under the Equal Protection Clause.”  Marbley based his analysis of the four-factor test on a district court ruling last year in New York, Adkins v. City of New York, which found all factors to be satisfied to justify heightened scrutiny, including a finding that “transgender people have ‘immutable and distinguishing characteristics that define them as a distinct group” for purposes of analyzing their equal protection claims.

Significantly, both judges accorded great weight to the Obama Administration’s Guidance, and both judges also found persuasive the Richmond-based 4th Circuit Court of Appeals’ ruling in the Gavin Grimm case that district courts should defer to the Administration’s interpretation due to the ambiguity of existing regulations about how to deal with transgender students under Title IX.  In light of such ambiguity, the federal administrators would enjoy deference so long as they adopted an interpretation of the statute and regulations that is not inconsistent with the purpose of the statute.  The judges rejected the argument that because Congress in 1972 did not intend to ban gender identity discrimination, administrators and judges decades later could not adopt such an interpretation of “discrimination because of sex.”

Although the Supreme Court has stayed the injunction issued by the district court in the Gavin Grimm case while the Gloucester (Virginia) school district’s petition for review of the 4th Circuit’s ruling is pending before the Supreme Court, Judge Marbley pointed out that the stay does not affect the status of the 4th Circuit’s decision as a persuasive precedent.  He also pointed out the unusual step taken by the Justice Stephen Breyer of writing that he had agreed to provide the necessary fifth vote for a stay to “preserve the status quo” as a “courtesy” to the four conservative justices.  The Highland school district argued that the stay “telegraphed” that the Supreme Court was going to grant review of the 4th Circuit’s decision, but, wrote Marbley, “even if Highland has somehow been able to divine what the Supreme Court has ‘telegraphed’ by staying the mandate in that case, this Court unfortunately lacks such powers of divination.”  Furthermore, he wrote, “This Court follows statements of law from the Supreme Court, not whispers on the pond.”

Judge Marbley also accorded great weight to the amicus brief filed on behalf of school administrators from around the country. In this brief, they explained how they had implemented the policies required by the Education Department to accommodate transgender students.  They pointed out that allowing transgender students to use appropriate facilities had not created any real problems.  They argued that this was a necessary step for the mental and physical health of transgender students, and did not really impair the privacy of other students.  Furthermore, in the more than twenty school districts joining in this brief, the new policy had not in any case led to an incident of a sexual predator gaining access to a restroom under the pretext of the policy and harming any student.  Thus, while acknowledging that school districts can be legitimately concerned about the health and safety of students, the courts could conclude that any such risk was conjectural and not borne out by experience.

The judges also noted other district court decisions over the past year ordering schools to allow transgender students to use appropriate facilities, including a recent ruling in one of the North Carolina cases, requiring the University of North Carolina to ignore H.B.2, that state’s infamous “bathroom bill,” and allow the three individual transgender plaintiffs to use appropriate restrooms at the university while the case is pending before the court.

Judge Marbley’s in-depth analysis of the jurisdictional issues provides a roadmap for a challenge before the Houston-based 5th Circuit Court of Appeals to Judge O’Connor’s nationwide injunction.  The Texas lawsuit attempted to short-circuit the requirements of the Administrative Procedure Act by dragging an interpretive dispute into the federal district court when the relevant statute provides an administrative forum for hearing and deciding such issues before appealing them to the Courts of Appeals.

Judge Marbley was appointed to the district court by President Bill Clinton. Judge Pepper was appointed by President Barack Obama.

Maine High Court Says Transgender Girl Can Use Public School Restroom of her Choice

Posted on: January 30th, 2014 by Art Leonard No Comments

Maine’s highest court ruled on January 30 that a transgender girl attending Maine public schools is entitled to use the girl’s restroom. Voting 6-1, the court reversed a contrary ruling by the Penobscott County Superior Court. The dissenting judge agreed that the right of transgender students to use the restroom of their choice should be protected, but argued that the legislature needed to amend the state’s public restroom statute to reach that result. Justice Warren M. Silver wrote the opinion for the court.

The court allowed the plaintiffs to use pseudonyms to protect confidentiality, so the plaintiffs were identified as John and Jane Doe, parents of Susan Doe. Susan, born male, began to identify as female as early as age two. She began attending school at the Asa Adams School in Orono, and generally wore gender-neutral clothing until third grade, when, as the court describes it, “her identity as a girl became manifest” and, for the first time, the school’s principal became aware that Doe was transgender. Students in the early grades used single stall restrooms, and Susan was allowed to use the single-stall girl’s room without incident. In third grade, teachers and other students referred to Susan as she and used her preferred name, and by fourth grade, she was dressing and appearing exclusively as a girl.

During Susan’s fourth-grade year, the school implemented a formal plan to “address Susan’s gender identity issues and her upcoming transition to fifth grade, where students used communal bathrooms separated by sex.” By this time, Susan had received a formal diagnosis of gender dysphoria. “School officials recognized that it was important to Susan’s psychological health that she live socially as a female,” wrote Justice Silver. And school officials did not interpret the state’s restroom facilities law as prohibiting somebody in Susan’s position from using the girls’ bathroom. A team was convened, including Susan’s mother, her teachers, a guidance counselor and the school district’s director of special services to deal with how the school would treat Susan. They agreed she would be treated as a girl and could use the communal girls’ restroom. They agreed that requiring her to use the boys’ room was not acceptable. Indeed, the principal testified in this lawsuit that it would not have been safe for her to do so. There was a unisex staff restroom on the school premises, which the team saw as available in case Susan’s use of the girl’s restroom became “an issue.”

In the fifth grade, it became “an issue,” because the grandfather of a male student, who was the student’s guardian, instructed him that if Susan was free to use the girls’ restroom, than so was he. This student followed Susan into the girls’ restroom on two occasions, and “the controversy generated significant media coverage.” Schools tend to react to controversy by wimping out, which is what the school did in this case, directing Susan that she had to use the single-stall, unisex staff restroom. Susan was the only student directed to use that room.

The special team met again to discuss Susan’s transition to middle school, and school officials insisted that Susan would not be permitted to use the girl’s restroom in middle school. Her parents objected to this, and at the end of her sixth grade year, they moved to another part of the state to transfer her to another school.

But even before the move, they filed a complaint with the Maine Human Rights Commission against the school district, represented by Gay & Lesbian Advocates & Defenders, the Boston-based New England LGBT rights law firm. Maine’s Human Rights Law specifically bans discrimination in public accommodations because of sexual orientation, and the term sexual orientation as used in the statute is defined to include gender identity. For the first time, the school district argued in response that the state statute requiring schools to provide separate restrooms for male and female students supported its position, and the Superior Court granted summary judgment to the school district on that basis.

Rejecting that interpretation, Justice Silver wrote that the “sanitary facilities” provision was intended “to establish cleanliness and maintenance requirements for school bathrooms, as well as requirements for the physical layout of toilet facilities. It does not purport to establish guidelines for the use of school bathrooms. Nor does it address how schools should monitor which students use which bathroom, and it certainly offers no guidance concerning how gender identity relates to the use of sex-separated facilities.” On the other hand, the human rights act was intended to “prohibit discrimination against transgender students in schools.” Justice Silver rejected the school district’s argument that the sanitary facilities provision “preemptively created an exception” to the human rights law requirements. Instead, he insisted that “a consistent reading of the two statutes avoids conflicting, illogical results and comports with the legislative intent by giving effect to both provisions.”

In this case, said the court, school administrators had accepted at an early stage that Susan was a girl and would be treated as a girl, and the school had itself determined that she could use the girls’ room. The later decision to limit her to the staff room was not due to any change in her status, but “on others’ complaints about the school’s well-considered decision,” and this was discriminatory. The court said that the school’s discrimination could not be “excused” by “compliance” with the sanitary facilities law.

The court pointed out that it was not holding that “any person could demand access to any school facility or program based solely on a self-declaration of gender identity or confusion without the plans developed in cooperation with the school and the accepted and respected diagnosis that are presented in this case.” Thus, the court rejected the dissent’s argument that its interpretation of the statutes would require schools “to permit students casual access to any bathroom of their choice.”

Dissenting Justice Andrew M. Mead insisted that he supported the right of a transgender student to be free from discrimination at school because of gender identity, but he could not agree with the majority’s interpretation of the sanitary facilities statute. “The statutory directive to segregate bathrooms in schools by sex, and providing for separate entrances and exits for those bathrooms, clearly anticipates that the use of a bathroom would be restricted to the sex for which it has been designated,” he insisted, disagreeing with the court’s statement that the schools had the prerogative to create their own policies concerning how the bathrooms were to be used. He found the “plain language” of the two statutes to be in conflict, and said that the court should have abstained from resolving the conflict, deferring the issue to the legislature.

In a concurring opinion, Chief Justice Leigh I. Saufley agreed with the court’s result, but strongly supported Justice Mead’s call for the legislature to address the issue. “Put simply,” wrote Saufley, “it could now be argued that it would be illegal discrimination for a restaurant, for example, to prohibit a man from using the women’s communal bathroom, and vice versa. I agree with the dissent that it is highly unlikely that the Legislature actually intended that result. Accordingly, on this matter of public policy, it would benefit the public for the Legislature to act quickly to address the concern raised by the dissent in this matter.”

Jennifer Levi, a law professor who works with GLAD on gender identity cases, argued the appeal on behalf of the Does.