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Transgender teen’s restroom suit against Evansville schools proceeds

June 5, 2018

A transgender teen’s lawsuit alleging the Evansville school district violated his rights by forcing him to use the women’s restrooms despite his male identity will continue after a district court judge rejected the school’s argument that only the teen’s parents could act as his next friend in the litigation.

J.A.W., a junior who attends school in the Evansville Vanderburgh School Corporation, sued the school district in February after he was repeatedly informed that he could not use male restrooms or locker rooms while at school. The student, who is now 16, said in the complaint that he was born female but has openly identified as male since he was 12.

The teenager has been diagnosed with gender dysphoria and is taking hormone therapy, which has accelerated the development of male characteristics. Despite that, the school district has maintained since J.A.W.’s freshman year that he cannot use the men’s restrooms, but instead must use either the women’s facilities or the private restroom in the nurse’s office. That rule also extended to J.A.W.’s gym classes during his freshman and sophomore years, when he and another transgender student were asked to change their clothes in the upstairs portion of the women’s locker room away from other students.

If J.A.W. uses the men’s restroom or locker room, he has been told that he could be disciplined. As a result, J.A.W. said he limits his fluid intake throughout the school day so that he will not need to use the restroom while at school. He also said using the private restroom in the nurse’s office is not a viable option because it is located far from his classes and is often locked.

J.A.W.’s complaint seeks a declaratory judgment that the school district’s policy violates his rights under the 14th Amendment and Title IX, and a permanent injunction allowing him to use women’s facilities while at school. It was brought by Wyatt Squires, a transgender advocate and mentor acting as J.A.W.’s next friend. But in a motion to dismiss filed March 20, counsel for the school district argued Squires was not an appropriate next friend for J.A.W.

Specifically, defense counsel argued under Elk Grove Unified School Dist. V. Newdow, 542 U.S. 1, 10 (2004) and T.W. by Enk v. Brophy, 124 F.3d 893 (7th Cir. 1997), that Squires lacks standing to serve as J.A.W.’s next friend. The defendants argued the complaint makes no reference to the teen’s parents or why they cannot or should not serve as his next friend, and those issues should be litigated in state, rather than federal, court. Further, the motion to dismiss alleged Squires’ “professional advocacy” for transgender issues is not sufficient to establish him as a next friend.

But Indiana Southern District Judge William T. Lawrence denied the motion to dismiss on Tuesday, agreeing with J.A.W.’s counsel — the American Civil Liberties Union of Indiana legal team – that Indiana law does not require J.A.W. to have a next friend because minors may sue in their own name. Thus, because J.A.W. is a proper party to the case, dismissal would not be appropriate even if Squires were not an appropriate next friend, Lawrence said.

The judge also agreed with the ACLU that the ruling in Newdow is inapplicable here. Newdow dealt with a noncustodial father who originally tried to bring litigation as his daughter’s next friend, but sought to bring the complaint on his own behalf by the time it reached the Supreme Court.

“The holding of that case is simply irrelevant here,” Lawrence wrote in J.A.W. v. Evansville Vanderburgh School Corporation, 3:18-cv-37. “Squires does not seek standing to sue independently of J.A.W., and J.A.W.’s unequivocal standing to bring this case on his own behalf means that this Court’s jurisdiction over the suit is secure.”

Similarly, in a footnote, Lawrence said the discussion in Brophy regarding “special representatives” of minors was dicta.

Given the finding that J.A.W. can litigate in his own name, and his representation by “experienced and suitable counsel,” Lawrence ordered the removal of Squires’ name from the case and declined to appoint a guardian ad litem for the teenager. The judge also denied the school district’s motion for oral argument and instead scheduled the case for a preliminary injunction hearing at 8:30 a.m. on July 20 in Evansville.

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