United States District Court, S.D. Indiana, Evansville Division
ENTRY ON PENDING MOTIONS
William T. Lawrence, Senior Judge
cause is before the Court on the Defendant's second
motion to dismiss (Dkt. No. 83); the Plaintiff's motion
for partial summary judgment (Dkt. No. 87); and the
Defendant's cross motion for summary judgment (Dkt. No.
95). The motions are fully briefed, and the Court, being duly
advised, GRANTS the Plaintiff's motion
and DENIES the Defendant's motions for
the reasons set forth below.
J.A.W. is now eighteen years old. At the time the Complaint
was filed, he was sixteen and an unemancipated minor; his
mother was his sole legal and physical guardian.
was assigned the gender of female at birth. His birth
certificate, which was obtained in Florida where he was born,
identifies his sex as female, as does his Indiana
driver's license. However, J.A.W. has long identified as
male. When J.A.W. was eleven years old, he first encountered
the term transgender and recognized that he was transgender.
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
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 had been 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.
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.
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 Evansville Vanderburgh School
Corporation (“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. J.A.W. 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.
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.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.
began counseling in September 2016 because he wanted
confirmation that he had gender dysphoria. 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.
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
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 School District No. 1 Board of
Educucation, 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.
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 became aware through discovery that J.A.W.
had been diagnosed with gender dysphoria and had been
undergoing hormone therapy. After beginning hormone therapy,
his appearance and voice became more masculine, he developed
a patchy beard, he lost weight, and his abdomen developed
more of a male appearance. He no longer menstruates. At the
preliminary injunction hearing, he looked and sounded like a
teenaged boy; he is very unlikely to be mistaken for a girl
at this point.
avoid having to use restrooms at school, J.A.W. severely
restricted his fluid intake in an attempt to prevent himself
from having to go the bathroom while at school. This caused
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. Using the girls' restrooms was
extremely upsetting to him and made 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 drew attention to the
fact that he is transgender, and that female peers at school
expressed discomfort with him using the girls' restrooms
because he appeared male. Id. at 21.
had no written policy regarding transgender students' use
of restrooms. Dr. David Smith, EVSC's superintendent,
testified at the preliminary injunction hearing that EVSC did
not have a formal policy at all; it had a
“practice.” Dkt. No. 61 at 38. He further
testified that EVSC's position was that J.A.W. could not
use boys' restrooms because “biologically he is
female.” Id. at 39. However, he also testified
that if J.A.W. had legally had his birth certificate changed
so that it indicated his sex was male, then under EVSC's
practice, J.A.W. would have been permitted to use the
boys' restrooms at school, because a birth certificate
would have been an “objective standard” by which
to determine that it was appropriate for him to do so. He
also testified 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.
August 2018, the Court entered a preliminary injunction
allowing J.A.W. to use the male restrooms within EVSC, and
EVSC complied with the Court's order. J.A.W. graduated
from North High School in the Evansville Vanderburgh School
Corporation (“EVSC”) in December 2018.
MOTIONS FOR SUMMARY JUDGMENT
asserts two claims: (1) that EVSC's refusal to permit him
to use boys' restrooms violated Title IX, 20 U.S.C.
§ 1681(a); and (2) that EVSC's refusal to permit him
to use boys' restrooms violated his rights under the
equal protection clause of the Fourteenth Amendment. EVSC has
moved for summary judgment on both claims. ...