When a school is playing up the fact that a fifth grader’s suicide risk has been downgraded from high to moderate to justify its ongoing discrimination, it’s not a particularly convincing argument. A federal judge in Ohio ruled Monday that she must immediately be allowed to go the bathroom with the other girls.
Jane Doe is a student at Highland Elementary School. Just before first grade, she socially transitioned, changing her clothing and even obtaining a legal name change — which made her feel “more joyful, at ease with herself, and less angry,” according to her mom. But for four years, her school has refused to change the name on her records or let her use the girls’ restroom. This discrimination had severe consequences. Jane felt bullied by teachers and by students, and last August, just before returning for the fourth grade, she attempted suicide.
Fourth grade was no improvement. She had always been required to use staff unisex restrooms, but last year that meant a locked room that a staff member had to escort her to use. As a result of this humiliation, Jane refused to use the restroom at school whatsoever and began to limit her fluid intake during the day. She testified in court how this made her feel alone and not part of the school:
She said that when other students line up to go to the restroom, she “leave[s] the line to go to a different restroom, [and] other kids say, ‘Why are you going that way? You’re supposed to be over here.’” One friend asked her: “Why are you going to another restroom? You’re a girl. Girls go to the girls’ restroom.” She also stated that other students sometimes bully her, call her a boy, or tell her to act like a boy, and that some teachers have told her she was a boy and called her by her birth name.
Beginning in 2013, Jane’s family began filing complaints with the Depart of Education’s Office of Civil Rights (OCR), arguing that Highland had violated Title IX and highlighting the various ways the school had discriminated against her because of her sex. This past March, OCR informed Highland that it had, in fact, broken the law, and proposed a resolution agreement plan for accommodating Jane.
The school bulked, and in June filed its own lawsuit — mirroring other suits recently filed by numerous states — against the federal government and its interpretation of laws regarding discrimination on the basis of “sex” protecting transgender students. OCR countered that it would strip the school district of its federal funding — over $1 million, about 7 percent of its budget. Jane’s family also intervened as third-party plaintiffs, leading to the current legal quagmire.
But this week, U.S. District Judge Algenon L. Marbley, a Clinton appointee, began to sort out the situation. He denied the school district an injunction against the OCR’s guidance and granted Jane an injunction against the school’s discrimination. “The Court orders School District officials to treat Jane Doe as the girl she is,” he wrote, “including referring to her by female pronouns and her female name and allowing her to use the girls’ restroom at Highland Elementary School.”
Marbley’s ruling emphasized the importance of Jane’s well-being and was fairly dismissive of the arguments Highland tried to make against accommodating her:
Some issues in this case are difficult, but determining whether Jane has been harmed from the School District’s policy is not one of them. Testimony from Joyce Doe [Jane’s mother] and Jane herself indicates that Jane feels stigmatized and isolated when she is forced to use a separate bathroom and otherwise not treated as a girl.
Although [Principal Shawn] Winkelfoos and [Superintendent William] Dodd assert that Jane seems happy at school and Third-Party Defendants all argue that Jane’s emotional difficulties stem not from her treatment at school but from other challenges she faces, such as her disabilities and eating disorder, the Court simply cannot discount, and indeed gives great weight to, the statements of Jane and Joyce Doe. Even a moderate risk of suicide — which the School District takes pains to trumpet has been downgraded from a high risk — indicates significant risk of harm to Jane, and both her testimony and Joyce’s demonstrate that she feels stigmatized when she is not treated as a girl and that she has been bullied at school. Moreover, according to Joyce, Jane often goes the entire day without using the bathroom because she hates being singled out when she is forced to use a separate bathroom, which would clearly impair her ability to focus on learning.
Highland had argued that Jane’s bathroom access would interfere with the school’s ability to protect students’ dignity and privacy and also expressed concerns about safety and lewdness. Marbley was unimpressed, pointing out that countless other schools have accommodated transgender students without any such problems.
Nor was he convinced by the fact that the Supreme Court had issued a stay in a similar case in Virginia. He noted that the Supreme Court did not telegraph its reasons for the stay, aside from Justice Breyer’s brief concurrence that he had agreed to it “as a courtesy” to the status quo. Since neither Breyer nor the other justices mentioned irreparable harm, Marbley felt no need to interpret the stay as such. “The Court follows statements of law from the Supreme Court,” he wrote, “not whispers on the pond.”
Marbley was also unfazed by the fact that a district court in Texas recently issued an injunction against OCR litigating any cases related to its guidance protecting transgender students. Not only was this case underway before that injunction was issued, but one district court’s decision cannot answer a question for all other courts.
“The stigma and isolation Jane feels when she is singled out and forced to use a separate bathroom contribute to and exacerbate her mental-health challenges,” Marbley concluded. “This is a clear case of irreparable harm to an eleven-year-old girl.”
Highland, which is represented in part by the anti-LGBT Alliance Defending Freedom, has filed already notice that it intends to appeal.