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J.A.W. v. Evansville Vanderburgh School Corp.

United States District Court, S.D. Indiana, Evansville Division

August 3, 2018

J.A.W., Plaintiff,
v.
EVANSVILLE VANDERBURGH SCHOOL CORPORATION, Defendant.

          ENTRY ON MOTION FOR PRELIMINARY INJUNCTION

          Hon. William T. Lawrence, Judge

         This cause is before the Court on the Plaintiff's motion for preliminary injunction (Dkt. No. 19). The motion is fully briefed, and the Court held a hearing on the motion on July 20, 2018, after which the parties submitted proposed findings of fact and conclusions of law. The Court, having considered all of the parties' filings and the testimony presented and evidence admitted at the hearing, and being duly advised, GRANTS the Plaintiff's motion for the reasons set forth below.

         I. BACKGROUND

         Plaintiff J.A.W. is a seventeen-year-old unemancipated minor; his mother is his sole legal and physical guardian.[1] J.A.W. is about to enter his senior year as a student at North High School in the Evansville Vanderburgh School Corporation (“EVSC”). He plans to graduate in December 2018.

         J.A.W.'s assigned gender at birth is female. His birth certificate, which was obtained in Florida where he was born, identifies his sex as female, as does his Indiana driver's license, which he recently obtained. However, J.A.W. has long identified as male. When J.A.W. was 11 years old, he first encountered the term transgender and recognized that he was transgender.

         J.A.W. began to feel uncomfortable using the girls' restrooms at school in sixth grade. In eighth grade he was assigned to a physical education class and felt uncomfortable using female locker rooms to change before and after class. He and his mother spoke to a social worker at school, and his schedule was changed so that he was no longer in a physical education class.

         Beginning in eighth grade, J.A.W. began to present himself outwardly as a boy; he began sporting a male haircut and wearing masculine clothing. He also began to ask his teachers to address him by his chosen masculine name (J.A.W.) instead of the feminine name that was given to him at birth and to request that masculine pronouns be used to refer to him. J.A.W. was too intimiDated: that time to seek permission to use the boys' restrooms at school.

         During his freshman year, J.A.W. attended classes at both North High School and Central High School. As he entered puberty, he suffered increasing discomfort and distress relating to what he now knows to be gender dysphoria, which is defined in the Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”) as “[a] marked incongruence between one's experienced/expressed gender and assigned gender . . . .” Dkt. No. 50-6 at 4. At that point he became extremely uncomfortable using the female restrooms at school.

         J.A.W. was required to take physical education at North High School during his freshman year. Because he did not feel comfortable using the girls' locker room to change before and after gym class, he and another transgender student began using a boys' restroom for that purpose. They did not seek permission to do so, and EVSC administrators learned of the situation when a parent called to complain that there were “two girls” using the boys' restroom. EVSC told J.A.W. not to use the boys' restroom anymore; as an alternative, the two transgender students were told to use another girls' locker room that was not otherwise being used. For other restroom needs, EVSC told J.A.W. that he could use the girls' restrooms or a gender-neutral, single-occupancy restroom in the nurse's office at North High School. This restroom generally is not used by students unless they are visiting the nurse or the office or have been granted permission to use it on a regular basis after demonstrating that they have a reason to do so. The nurse's restroom was located far from J.A.W.'s classes and therefore was inconvenient. He tried using it a few times but found it locked, so he stopped trying to use it. J.A.W. did not make any specific request with regard to restroom use at Central High School.

         During his sophomore year, J.A.W. attended classes at both North High School and Harrison High School. Per his request, his teachers continued to address him as J.A.W. and use masculine pronouns to refer to him. Early in that school year, J.A.W. approached the principal of North High School with the “Dear Colleague” letter that was jointly issued on May 13, 2016, by the U.S. Department of Justice, Civil Rights Division, and the U.S. Department of Education, Office for Civil Rights, which J.A.W. believed entitled him to use the boys' restrooms at school.[2]EVSC reviewed the letter, consulted with counsel, and ultimately denied J.A.W.'s request to use the boys' restrooms. J.A.W. was instructed either to use the girls' restrooms or the gender-neutral, single-occupancy restroom in the nurse's office at North High School. J.A.W. was not informed of the availability of a gender-neutral restroom at Harrison High School; students are also required to obtain permission to use that restroom. The arrangements for J.A.W. to change before and after physical education class remained the same as the previous year.

         J.A.W. began counseling in September 2016 because he wanted confirmation that he had gender dysphoria. J.A.W. has submitted the Declaration of James D. Fortenberry, M.D., M.S., the director and founder of the Gender Health Program at Riley Children's Health in Indianapolis, who explains that the standards of care for gender dysphoria “recognize . . . that the principal treatment of gender dysphoria is to allow the person full expression of his or her gender identity.” Dkt. 50-6 at 6. This involves both “social role transition, ” a process in which “a person presents themselves in a manner consistent with their experienced gender, which includes name, dress, hair style, and other aspects of gender presentation, ” as well as hormone therapy to “initiate[] the physiologic changes in body contour and appearance to match the experienced gender.” Id. at 7. The ability to use public restrooms consistent with one's gender identity “is a prime component of gender affirmation.” Id.

         In June 2017, J.A.W.'s counselor wrote to his medical doctor and opined that J.A.W. met the criteria for Gender Dysphoria of Adolescence and that he would benefit greatly both medically and psychologically from hormone therapy. Based upon a diagnosis of gender dysphoria, J.A.W. was prescribed testosterone in the fall of 2017. He has been taking testosterone injections regularly since then.

         In November 2016, during his sophomore year, J.A.W. sent an email to Dr. Dionne Blue, EVSC's Chief Diversity Officer, informing Dr. Blue that he was a transgender student and asking about EVSC's policy with regard to transgender students accessing restrooms and locker rooms. Dr. Blue responded that EVSC did not have an official policy, but that transgender students could use the nurse's office or other gender-neutral restrooms depending on the facilities available in the building. Dr. Blue further stated that schools would address any other needs on a case-by-case basis. J.A.W. did not follow up with Dr. Blue or make any requests of her. During his sophomore year, J.A.W. did not complain to anyone at EVSC that the gender-neutral restrooms made available to him were inaccessible or otherwise unsatisfactory.

         J.A.W. did not seek permission to use the boys' restrooms during the first semester of his junior year. On January 21, 2018, early in the second semester, J.A.W.'s attorney contacted EVSC on his behalf and informed EVSC that pursuant to the Seventh Circuit's decision in Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1044 (7th Cir. 2017), cert. dismissed sub nom. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ. v. Whitaker ex rel. Whitaker, 138 S.Ct. 1260 (2018), he believed that J.A.W. was entitled to use the boys' restrooms at school. The letter did not mention J.A.W.'s mother's position on the issue. EVSC's general counsel responded that Whitaker was distinguishable on its facts, that it did not appear to represent the state of the law across the United States, and that J.A.W. would not be permitted to use the boys' restrooms at school. This lawsuit ensued.

         Prior to the institution of these proceedings, EVSC had never been made aware that J.A.W. had been diagnosed with gender dysphoria, that he was undergoing hormone therapy, or that he had any complaints regarding the proximity and accessibility of the gender-neutral restroom EVSC had made available to him. However, EVSC is now aware that J.A.W. has been diagnosed with gender dysphoria and that he has been undergoing hormone therapy for almost a year. Since beginning hormone therapy, his appearance and voice have become more masculine; he has developed a patchy beard, he has lost weight, and his abdomen has developed more of a male appearance. He no longer menstruates. At the hearing, he looked and sounded like a teenaged boy; he is very unlikely to be mistaken for a girl at this point. Given these facts, EVSC's position that J.A.W. “has merely announced to EVSC that he is male and demanded access to facilities inconsistent with the gender marker appearing on the birth certificate his mother provided to EVSC at the time of his enrollment, ” Dkt. No. 65 at 22, is simply incorrect.

         To avoid having to use restrooms at school, J.A.W. severely restricts his fluid intake in an attempt to prevent himself from having to go the bathroom while at school. This causes him pain and discomfort. On the few occasions in the past that J.A.W. could not wait, he used the girls' restrooms at school, as he did not want to be disciplined by EVSC.[3] Using the girls' restrooms is extremely upsetting to him and makes him feel ostracized from his peers because, as he testified, it “contradicts what I am projecting to the world of what I identify as.” Dkt. No. 61 at 18-19. J.A.W. also testified that using the girls' restroom at school draws attention to the fact that he is transgender, and that female peers at school have expressed discomfort with him using the girls' restrooms because he appears male. Id. at 21.

         EVSC has no written policy regarding transgender students' use of restrooms. While EVSC asserts in its surreply brief that its policy is “to make restroom assignments based on the sex listed on the student's birth certificate or other comparable government-issued identifying documents used to enroll the student, and to consider parental requests to deviate from that default position on a case-by-case basis, ” Dkt. No. 59 at 1, the evidence of record does not support that assertion. Dr. David Smith, EVSC's superintendent, testified that EVSC does not have a formal policy at all; it has a “practice.” Dkt. No. 61 at 38. He further testified that EVSC's position is that J.A.W. may not use boys' restrooms because “biologically he is female.” Id. at 39. However, he also testified that if J.A.W. were to legally have his birth certificate changed so that it indicated his sex was male, then under EVSC's current, unwritten practice, J.A.W. would be permitted to use the boys' restrooms at school, because a birth certificate would be an “objective standard” by which to determine that it was appropriate for him to do so. He also conceded that if J.A.W. were to have his birth certificate changed but his use of the boys' restrooms nonetheless caused a “disruption, ” EVSC could respond by again barring J.A.W. from the boys' restrooms. Id. at 54.[4]

         II. DISCUSSION

         The issue now before the Court is a narrow one: whether J.A.W. is entitled to the preliminary injunctive relief he seeks, which is that he be allowed to use the boys' restrooms within the schools and other buildings of EVSC. A preliminary injunction is “an extraordinary remedy” that “[i]s never awarded as a matter of right.” Whitaker, 858 F.3d at 1044 (citations omitted).

A two-step inquiry applies when determining whether such relief is required. First, the party seeking the preliminary injunction has the burden of making a threshold showing: (1) that he will suffer irreparable harm absent preliminary injunctive relief during the pendency of his action; (2) inadequate remedies at law exist; and (3) he has a reasonable likelihood of success on the merits. If the movant successfully makes this showing, the court must engage in a balancing analysis, to determine whether the balance of harm ...

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