Evansville schools must allow transgender teen to use boys’ bathroom

A transgender Evansville teen will be permitted to use the boys’ bathroom this school year after a district court judge issued an injunction against the Evansville Vanderburgh School Corporation, finding the school district cannot require the teen to use the girls’ restroom because his birth certificate identifies him as female.

Indiana Southern District Court Judge William T. Lawrence entered the injunction against the school district Friday after the ACLU of Indiana sued in February on behalf of J.A.W., a now-17-year-old senior at North High School in Evansville. J.A.W. was born female but has publicly identified as male since the time he was in eighth grade.

When J.A.W. entered high school, he and another transgender student began using the boys’ restroom to change before and after gym class, an action they took without permission and that drew complaints from parents. J.A.W. was instructed not to use the boys’ restroom and was instead told to use a girls’ locker room not in use and to use the gender-neutral restroom in the school nurse’s office.

J.A.W., however, claimed the nurse’s office was far from his classes and was often locked, so he did not use that option. Instead, the teen began limiting his fluid intake during the school today to avoid having to use the restroom.

J.A.W.’s request to use the boys’ bathroom during his sophomore year also was denied, and he was once again instructed to use an empty girls’ locker room before and after gym class. The teen then began counseling in September 2016 and was diagnosed with gender dysphoria. He began hormone therapy in the fall of 2017 and, according to Lawrence, is “very unlikely to be mistaken for a girl at this point.”

Then in 2018, relying on the 7th Circuit Court of Appeals’ decision in the Wisconsin case of Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. Of Educ., 858 F.3d 10134, 1044 (7th Cir. 2017), J.A.W.’s attorney told EVSC that he was entitled to use the boys’ restrooms. EVSC’s counsel disagreed, prompting the instant lawsuit.

Lawrence relied heavily on Whitaker to support the issuance of the injunction against the school district. Starting with J.A.W.’s Title IX claim, the judge rejected EVSC’s argument that “Whitaker did not hold that ‘schools are prohibited from requiring a parental request prior to allowing transgender students to access restrooms in alignment with their gender identity’ or that ‘schools are prohibited from requiring some evidence that access to such facilities is medically, psychologically, and developmentally necessary and appropriate for the individual student.’”

“That is true – Whitaker did not specifically hold either of those things,” Lawrence wrote. “But that is irrelevant to the issue now before the Court, because EVSC has made it clear … that its decision to prohibit J.A.W. from using boys’ restrooms was not based on either a requirement that there be a parental request or a requirement of any sort of evidence regarding what is necessary and appropriate for J.A.W.

“Rather, EVSC’s position unequivocally is that unless and until J.A.W. obtains a birth certificate that states that his sex is male — something that appears to be legally impossible for him to do at this point in time — he will not be permitted to use the boys’ restrooms,” Lawrence continued, writing in a footnote that the law the school district cites for its birth certificate argument would not allow J.A.W. to have his birth certificate changed.

The judge also rejected EVSC’s arguments against J.A.W.’s Equal Protection claim, finding the district’s justification for requiring J.A.W. to use the girls’ restrooms — “preventing disruption and protecting the safety of all of its students, both transgender and cisgender” — was “based on sheer conjecture and abstraction.” He noted students have begun complaining about J.A.W., who now appears masculine, using the girls’ facilities. Further, students who might complain about him using the boys’ restrooms likely “would be unaware of the content of his birth certificate,” Lawrence said.

Finally, Lawrence held J.A.W. has no adequate remedy at law for his “discomfort, distress, and anxiety when he is forced to use a girls’ restroom because it is inconsistent with his male identity,” finding the continued denial of his use of boys’ facilities would constitute irreparable harm. The judge also determined a monetary award would be inadequate compensation “for the type of stress and anxiety J.A.W. likely would experience for the remainder of his time in high school if an injunction were not granted.”

The ACLU of Indiana celebrated Lawrence’s ruling on Monday, saying transgender students such as J.A.W. may confront bullying if they are denied access to restrooms that align with their gender identity.

“Today’s decision affirms that denying a student his right to use the correct restroom is discrimination, plain and simple,” legal director Ken Falk said in a Monday statement. “This is consistent with the great wealth of authority and many Indiana school corporations follow the law in this regard.”

“Schools should be a safe place for kinds and the refusal to allow a student to use the correct restroom can be extremely emotionally damaging,” Kit Malone, ACLU of Indiana advocate and educator, added. “Today’s ruling will help ensure that J.A.W. does not have to endure the emotional hardships, and often increased bullying, that arises from such discrimination.”

For its part, EVSC said its legal counsel is reviewing Lawrence’s ruling.

“We remain committed to maintaining safe and caring learning environments for all of our students,” spokesman Jason Woebkenberg wrote in an email to Indiana Lawyer.

Friday’s ruling marks the second time J.A.W. has won a legal victory in the case of J.A.W. v. Evansville Vanderburgh School Corporation, 3:18-cv-37. https://ecf.insd.uscourts.gov/cgi-bin/show_public_doc?32018cv0037-68 Lawrence allowed the case to proceed in June after he rejected the school district’s argument that only the teen’s parents could act as his next friend in the litigation. https://www.theindianalawyer.com/articles/47205-transgender-teens-restroom-suit-against-evansville-schools-proceeds

The complaint originally named Wyatt Squires, a transgender advocate and mentor acting as J.A.W.’s next friend, as a plaintiff. Lawrence ultimately removed Squires from the case and allowed J.A.W. to litigate in his own name.

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