U.S. Appeals Court Backs Injunction for Transgender Student on Restroom Choice

By Mark Walsh — December 16, 2016 2 min read
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A federal appeals court has refused to block a lower court’s order requiring an Ohio school district to allow an 11-year-old transgender girl to use the girls’ restroom at school.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 2-1 against the stay sought by the Highland Local School District.

“We are not convinced that Highland has made its required showing of a likelihood of success on appeal,” said the majority in its Dec. 15 decision in Dodds v. Doe. The court said it was settled law in the 6th Circuit that discrimination based on transgender status was prohibited under federal civil rights statutes.

Further, the school district would not be irreparably harmed by a federal district court injunction requiring it to allow the transgender student identified in court papers as Jane Doe to continue to use the girls’ restroom at school, the appeals court majority said.

“Doe’s personal circumstances—her young age, mental health history, and unique vulnerabilities—and her use of the girls’ restroom for over six weeks, which has greatly alleviated her distress, differentiate her case from” the transgender rights case being heard this term by the U.S. Supreme Court. In that case, Gloucester County School Board v. G.G., the high court granted a stay sought by a Virginia school district of a lower court order that would have required the district to allow a transgender high school student to use the boys’ restroom.

At issue in the Gloucester County case is whether courts must defer to the U.S. Department of Education’s interpretation of its rules under Title IX of the Education Amendments of 1972, which prohibits discrimination “based on sex” in federally funded schools.

In the Ohio case, the 6th Circuit majority said that “staying the injunction would disrupt the significant improvement in Doe’s health and well-being that has resulted from the injunction, further confuse a young girl with special needs who would no longer be allowed to use the girls’ restroom, and subject her to further irreparable harm.”

Judge Jeffrey S. Sutton dissented, saying that “just as the plaintiff in Gloucester County must wait for Supreme Court review before changing the status quo, so should the plaintiff in our case be required to wait for that decision before changing the status quo. Similar treatment of similar plaintiffs is the essence of equal justice under law.”

“The Supreme Court presumably will resolve the Title IX issue in 2017,” Sutton added. “In the meantime, the court has indicated that we should wait for further instructions before granting relief on these sorts of claims. These lawsuits pose novel questions and, if successful, will require novel changes to school restrooms and locker rooms. If past is precedent, the [Supreme] Court does not want a patchwork of provisional answers to emerge while it deliberates.”

A version of this news article first appeared in The School Law Blog.