On December 12, 2016, a federal appellate court denied an Ohio school district’s request to lift an Ohio federal district court order directing the school district to permit a transgender student, who is biologically male but identifies as female, access to a bathroom in accordance with her gender identity.
As we reported in our September 26, 2016 blog update, a federal district court ordered the school district to treat a transgender student who professed a female gender identity, but is biologically male, “as the girl she is, including referring to her by female pronouns and her female name and allowing her to use the girls’ restroom.” Bd. of Educ. of the Highland Local School Dist. v. United States Dept. of Educ., S.D.Ohio No. 2:16-CV-254 (Sept. 26, 2016). To read our September 26, 2016 blog post, please click here.
The school district appealed that federal district court’s ruling and requested that a federal appellate court stay, or lift, the order during the pendency of the appeal. The appellate court denied the request stating that “[w]e are not convinced that [the school district] has made its required showing of a likelihood of success on appeal” in order to lift the order. Highland Local School Dist. v. United States Dept. of Educ., 6th Cir. No. 16-4117 (Dec. 15, 2016) (Doc. 32-2). Specifically, the appellate court found that, “[u]nder settled law in this Circuit [discrimination against an individual because of] gender noncomformity” is impermissible discrimination. Id. While the appellate court did not elaborate on this concept, it presumably concluded that denying a transgender student access to a bathroom consistent with her gender identity discriminates against that student for failing to conform to gender stereotypes about what it means to be a male. The appellate court further found that the student, “a vulnerable eleven year old with special needs, will suffer irreparable harm if prohibited from using the girls’ restroom” during the appeal. Id.
The federal appellate court’s order contains a forceful dissent from Justice Jeffrey S. Sutton who argues that the appellate court should abide by the direction of the United States Supreme Court, which ordered the parties to maintain the status quo in Gloucester County School Board v. G.G., a highly anticipated case regarding another transgender student and bathroom access that is currently pending before the United States Supreme Court. To read our blog discussing the G.G. case, please click here.
Please check back with our blog often for updates regarding this rapidly emerging issue affecting school districts across the country.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.