Federal judge orders Vigo Co. schools to allow transgender boys to use gender-affirming facilities

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A federal judge has ordered the Vigo County School Corp. to allow two transgender students attending Terre Haute North Vigo High School to use their gender-affirming bathrooms and locker rooms.

Signed Friday by U.S. District Court for the Southern District of Indiana Judge James R. Sweeney II, a preliminary injunction was entered in favor of plaintiffs B.E. and S.E. after they showed a likelihood of success on the merits of their Title IX claim and proved there could be irreparable harm if an injunction wasn’t issued.

B.E. and S.E., whose cased was filed by the American Civil Liberties Union of Indiana, were designated female at birth but have identified as male since they were about 11 years old.

According to court documents, the plaintiffs, now 15 years old, have started gender-affirming testosterone therapy, “which initiates anatomical and physiological changes consistent with the male gender, such as deepening of the voice and the growth of facial hair.”

B.E. and S.E., who both have been diagnosed with gender dysphoria, have also legally changed their names and gender identifications, and their birth certificates have been amended to reflect their masculine names and male gender.

Court documents state the plaintiffs used the boys’ bathrooms at the beginning of this past school year without incident until a school employee reported their use. The vice principal of the school then told B.E. and S.E. they must use the girls’ or unisex bathrooms or they would be disciplined.

“It is the School’s position that Plaintiffs cannot use the boys’ facilities ‘without surgical or anatomical change,’” Sweeney’s order states. “Plaintiffs have been using the health office bathroom because using the girls’ bathroom ‘feels wrong,’ makes Plaintiffs extremely anxious and upset, and causes confusion among peers who do not know that Plaintiffs are transgender, forcing Plaintiffs to explain why they are using the girls’ bathroom.”

Among the cases the district court reviewed were the U.S. Supreme Court’s decisions in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the 7th Circuit Court of Appeals’ decision in Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017), abrogated on other grounds by Illinois Republican Party v. Pritzker, 973 F.3d 760 (7th Cir. 2020), and the 4th Circuit’s ruling in Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020), among others.

Bostock held, in clear terms, that ‘it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,’” Sweeney wrote. “Much like Title VII, Title IX prohibits discrimination ‘on the basis of sex.’ … It follows, then, that Title IX similarly prohibits discrimination because of an individual’s transgender status. Whitaker reached this same conclusion, albeit under a different theory of sex discrimination.

“… At best for Plaintiffs, Whitaker remains binding precedent on this Court; at worst, the Seventh Circuit has tipped its hand that it thinks Plaintiffs have the better of the argument,” Sweeney continued. “With the appeal of (A.C. v. Metro. Sch. Dist. Of Martinsville, 22-1786) pending before the Seventh Circuit, these murky waters may soon become clear, but until then, and despite cogent arguments from Defendants, this Court is bound by Whitaker.

After determining the plaintiffs met the requisite burden, the district court determined there could be irreparable harm if a preliminary injunction isn’t issued.

Specifically, Sweeney pointed to a doctor’s notes that said the students “have explicitly and consistently noted school-related distress associated with mis-gendering and with restrictions on bathroom and locker room access,” and that these experiences have “long-term influences on mental health, physical health, and overall wellbeing.”

Additionally, one of the students’ mothers testified that the plaintiffs have contemplated and carried out self-harm “because of what they are going through.”

“Having determined that Plaintiffs will suffer irreparable harm absent preliminary injunctive relief, and that Defendants and the public interest will not be harmed if such relief is granted, this balance weighs in Plaintiffs’ favor,” Sweeney concluded.

Initially, the lawsuit also sought to require school staffers to use the plaintiffs’ male names and to use those names in school publications, according to The Associated Press. In a footnote to his Friday order, Sweeney said the defendants have since agreed to refer to the students by their male names and pronouns.

Sweeney’s order came almost two months after Southern Indiana District Court Chief Judge Tanya Walton Pratt issued a similar order for a Martinsville middle schooler.

The issue of LGBTQ students in Indiana schools has come up frequently in recent Indianapolis politics.

In May, the Legislature overrode a veto by Gov. Eric Holcomb regarding a new law that bans transgender girls from participating in their gender-affirming K-12 sports. Indiana Attorney General Rokita has defended the law on numerous occasions and also filed a 21-state amicus brief last week in the Martinsville case.

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