Monday, December 19, 2016

Appellate Court Denies School District's Claim That It Would Suffer Irreparable Harm by Granting Equal Restroom Access to Transgender Student

The Sixth Circuit Court of Appeals has ruled in favor of a transgender student's access to facilities consistent with her gender identity, bring the number of favorable circuit courts to two.  In Dodds v. U.S. Department of Education, the court refused to read too much into the Supreme Court's recent stay in Grimm v. Gloucester:

The crux of this case is whether transgender students are entitled to access restrooms for their identified gender rather than their biological gender at birth. To demonstrate a likelihood of success on the merits, the movant must show, “at a minimum, serious questions going to the merits.” Mich. Coal., 945 F.2d at 153 (internal citation omitted). “It is not enough that the chance of success on the merits be better than negligible.” Nken, 556 U.S. at 435 (citation omitted). “[M]ore than a possibility of relief is required.” Id. While the Supreme Court has stayed a similar case from another Circuit, see G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 136 S. Ct. 2442 (Mem), that fact does not satisfy the test required of us here, and does nothing more than show a possibility of relief, which is not enough to grant a stay.

To be clear, however, this court did not rule on the merits of the issue of whether Title IX requires admission to the restroom. As an appeal of a preliminary junction, the court focused, appropriately so, on the irreparable harm the district would purported suffer, as well as that of the girl.  It wrote:

the record establishes that Doe, a vulnerable eleven year old with special needs, will suffer irreparable harm if prohibited from using the girls’ restroom. Her special education class, which previously used the nurse’s restroom to accommodate Doe, has started using the sex-separate multi-user restrooms now that Doe can use the girls’ restrooms. Highland’s exclusion of Doe from the girls’ restrooms has already had substantial and immediate adverse effects on the daily life and well-being of an eleven-year-old child (i.e. multiple suicide attempts prior to entry of the injunction). These are not distant or speculative injuries—staying the injunction would disrupt the significant improvement in Doe’s health and well-being that has resulted from the injunction, further confuse a young girl with special needs who would no longer be allowed to use the girls’ restroom, and subject her to further irreparable harm.

 

https://lawprofessors.typepad.com/education_law/2016/12/appellate-court-denies-school-districts-claim-that-it-would-suffer-irreparable-harm-by-granting-equa.html

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