Bd. Of Educ. Of the Highland Local Sch. Dist. v. United States Department of Education, Dkt. No. 2:16-CV-524 (S.D. Ohio Sept. 26, 2016).

Facts:  Jane Doe, an eleven-year-old transgender girl, sought to use the girls’ restroom at Highland Elementary School in Ohio.  The school would not permit her to do so.  After an investigation, the Department of Education Office of Civil Rights (OCR) found that the district’s policy discriminated against the student on the basis of her sex in violation of Title IX of the Education Amendments of 1972.  The district filed suit seeking an order enjoining the Department of Education and the Department of Justice from enforcing Title IX against the district.  The student, in turn, sought an order enjoining the district’s transgender bathroom policy and allowing her to use the bathroom based upon her gender identity.

Ruling:  The Ohio federal district court ruled in favor of the student, entering an order that required the district to allow her to use the girls’ bathroom.  To prevail on a claim under Title IX, plaintiffs had to show that (1) the student was excluded from participation in an educational program because of her sex, (2) the educational institution received federal financial assistance, and (3) the discrimination harmed the student.  The trial court rejected the school district’s contention that discrimination based upon “sex” under Title IX, implied only one’s “biological sex” and not gender identity. The student claimed that she was stigmatized and isolated, forced to use a separate bathroom, not treated like a girl, and experienced emotional difficulties.  The court concluded that she was likely to succeed on a Title IX claim and, therefore, was entitled to a preliminary injunction under Title IX.

The trial court also determined that plaintiffs were likely to prevail on an Equal Protection claim.  The trial court applied the highest level of scrutiny to plaintiffs’ claims, which required the district to show that its policy was necessary to achieve a compelling governmental interest, and that the policy was the least restrictive means of achieving that interest.  The school district advanced concerns regarding the dignity and privacy of other students, and raised safety and lewdness issues.  The district also argued that allowing a transgender student to use of bathrooms based on gender identity would interfere with the other students’ zone of privacy.  The trial court rejected each of those arguments and found that there was insufficient evidence to support the district’s contentions.  Thus, the trial court granted the student’s request for a preliminary injunction and allowed her to use district bathrooms based upon her gender identity.  This case is on appeal.

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