By: Codie J. Ross

On August 3, 2018, the Federal Court for the Southern District of Indiana issued an injunction against Evansville Vanderburgh School Corporation (“EVSC”), holding that a transgender student, identifying as male, is now permitted to use the restroom consistent with his gender identity.  The injunction was entered by Judge William T. Lawrence after the ACLU of Indiana filed suit in February in the case of J.A.W. v. Evansville Vanderburgh School Corporation, 3:18-cv-37.

J.A.W. is a 17-year-old senior at North High School in Evansville.  He was born female, and the same is indicated on his birth certificate.  However, dating as far back as eighth grade, he has identified as male.  He began hormone therapy in the fall of 2017, was diagnosed with gender dysphoria, and according to Judge Lawrence, is “very unlikely to be mistaken for a girl at this point.”  When J.A.W. entered high school, he and another transgender student, without permission, began using the boys’ restroom to change for gym class.  This action drew complaints from parents, and J.A.W. was instructed not to use the boys’ restroom, but to instead use a girls’ locker room not in use, and to use the gender-neutral restroom in the school nurse’s office.

Relying upon a 2018 Seventh Circuit Court of Appeals decision, J.A.W.’s attorney advised EVSC that J.A.W. was entitled to use the boys’ restrooms, citing Title IX and the Equal Protection Clause of the United States Constitution.  EVSC disagreed, and the lawsuit was filed with the backing of the ACLU.  In issuing the injunction against EVSC, Judge Lawrence relied heavily upon the Seventh Circuit’s already established case law. 

Regarding J.A.W.’s Title IX claim, the Judge found that “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.”  The Court went on to state, “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.”

In examining J.A.W.’s Equal Protection claim, the judge also found 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 female 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.  He went on to note that J.A.W. would have 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.”

The injunction and associated issues are demonstrative of the complexities involving gender identification and the balance educational institutions are forced to strike in being inclusive and in trying to meet the needs of all students.  If you have any questions regarding this decision and the impact this changing area of the law has on our schools, please contact any member of our Education Law Liability Practice Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.


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