Ohio Court Weighs in on Transgender Student Access to Restrooms and Name Issues

By Christine T. Cossler and Lisa H. Woloszynek.

As the national debate regarding transgender students' rights and school districts' obligations rapidly evolves, the United States District Court for the Southern District of Ohio adds to the conflicting precedent. On September 26, 2016, Judge Marbley ordered the Highland Local School District ("District") to treat 11 year-old "Jane Doe," a biological male, "as the girl she is." The Judge's order requires the District to allow the student to use the girls' restroom in the elementary school and refer to her by female pronouns and her female name. The crux of the issues involves transgender identity protections under the Equal Protection Clause and Title IX of the Education Amendments of 1972. In making his ruling, Judge Marbley rejected the privacy argument made by the District that the privacy rights of other students weighed against allowing Jane Doe to use the girls' restroom.

The Highland Local decision is not binding on courts in Northeast Ohio, but, it is the first Ohio court decision addressing student transgender issues at the K-12 level and the decision does align with the approach espoused by the United States Department of Education ("DOE") and Office for Civil Rights.

In recent months, courts have grappled with expanding transgender students' rights, with requirements to treat students in a manner consistent with their gender identity and protect against gender identity discrimination. However, some contend that these federal laws do not extend to transgender identification. This controversy has extended up to the United States Supreme Court for potential consideration; meanwhile, the United States DOE and United States Department of Justice ("DOJ") issued guidance for school districts to treat students in a manner consistent with the student's gender identity, only to be met with a preliminary injunction to stop the enforcement of such federal guidance while the Northern District of Texas addresses eleven states' challenges. Until Monday, Ohio courts had not weighed in on the issue.

In reference to the pending Texas lawsuit and its nationwide preliminary injunction, Judge Marbley reasoned that it was not applicable because Ohio was not a party to the Texas case and the Highland litigation was initiated prior to that lawsuit. This decision is in line with the DOE and DOJ guidance and adds to the trend toward transgender protections. Notably, Judge Marbley also granted the State of Ohio's motion for leave to file an amicus curiae brief on behalf of the District. To highlight the importance of these issues and district obligations – more than $1 million of education funding is at stake for the District (the Highland District filed the lawsuit because it was potentially facing loss of federal funding in connection with its unwillingness to allow the 11-year old student to use the girls' restroom).

Until this area of law begins to settle, it is advisable for Ohio school districts to keep these recent rulings in mind when addressing transgender student concerns and avoid actions that may be construed as gender identity discrimination. The Highland Local School District intends to appeal this injunction; therefore, more direction for Ohio school districts should be forthcoming.

Christine T. Cossler is a partner, and Lisa H. Woloszynek is an associate in the Education Services Group of the Cleveland-based law firm of Walter | Haverfield LLP.