Potter Stewart Courthouse, home to the 6th U.S. Circuit Court of Appeals – Photo: Carol M. Highsmith, via Wikimedia.
In a first-of-its-kind move, a federal appeals court has slapped down an Ohio school district that wants to force an 11-year-old transgender female student to use the boys’ restroom.
A 6th U.S. Circuit Court of Appeals panel split 2-1 in favor of the transgender student by refusing to grant a stay of a lower court order preventing the Highland Local School District in Medina, Ohio, from adopting a policy that would force the student, known as Jane Doe, to use the boys’ restroom.
The school district proposed the policy in response to guidance from the Obama administration urging school administrators to allow transgender students to use the restrooms and locker room facilities consistent with their gender identity.
As a result, for the time being, Jane Doe will now be able to use the girls’ restroom without interference from the school district or school administrators.
Judges Damon Keith and Bernice Donald, in the majority opinion, noted that Doe has already attempted suicide multiple times because of stress stemming from her gender dysphoria and the school district’s attempts to treat her like a boy.
“Doe’s personal circumstances — her young age, mental health history, and unique vulnerabilities — and her use of the girl’s restroom for over six weeks, which has alleviated her distress, differentiate her case from Gloucester County,” the majority opinion reads, referencing the case of Gavin Grimm, the Virginia transgender teenager whose battle to use the boys’ restroom in Gloucester High School is pending before the Supreme Court.
In that case, the Supreme Court granted a stay of a decision by the 4th Circuit Court of Appeals finding that Grimm should be protected under Title IX.
“Permitting Highland to again single her out, and disrupt the status quo, is distinct from the stay granted in Gloucester County, which maintained the status quo as opposed to disrupting it,” the opinion continues. “Maintaining the status quo in this case would protect Doe from the harm that would befall her if the injunction is stayed.”
Additionally, the majority said they did not believe Highland Local School District would be successful in its appeal, noting that 6th Circuit has found in other cases that “sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.”
Judge Jeff Sutton dissented, arguing that since the Gloucester County case will be argued before the Supreme Court in 2017, that the court will presumably resolve the question of whether the prohibitions on “sex discrimination” under Title IX of the Education Amendments of 1972 apply to transgender or gender nonconforming students. Sutton advised the court to “wait for further instructions” — in the shape of a definitive Supreme Court ruling — before siding with Doe. Sutton compared it to the stays that were granted when challenges seeking to overturn state bans on marriage equality were working their way through the courts.
“We are pleased that the court recognized the importance of ensuring our client is treated equally and has the same educational opportunities as other students in the district,” Asaf Orr, the attorney for Jane Doe and the Transgender Youth Project Director for the National Center for Lesbian Rights, said in a statement. “As the court recognized, while being singled out from other students would cause Jane Doe serious harm, there is no harm caused to anyone by treating a transgender student equally.”
Editor’s Note: This story was updated to include reaction from the National Center for Lesbian Rights.