208 F. Supp. 3d 850
S.D. Ohio2016Background
- Jane Doe, an 11‑year‑old transgender girl assigned male at birth, requested to use the girls’ restroom at Highland Elementary; the school required her to use a separate staff/office restroom.
- Jane’s parents filed an OCR complaint; OCR investigated and found Highland violated Title IX by denying Jane access to restrooms consistent with her gender identity and by failing to assess a hostile environment. OCR proposed a resolution requiring access consistent with gender identity; Highland refused and sued federal agencies seeking to enjoin enforcement of the agencies’ guidance.
- Jane intervened and moved for a preliminary injunction ordering Highland to treat her as a girl (use female name/pronouns) and allow access to the girls’ restroom. Highland sought a preliminary injunction preventing DOE/DOJ enforcement of guidance interpreting “sex” to include gender identity.
- The dispute centers on (1) whether Title IX/regulations’ term “sex” includes gender identity and (2) whether Highland’s restroom policy violates Title IX and the Equal Protection Clause by discriminating against Jane.
- The court concluded it lacked jurisdiction over Highland’s pre‑enforcement APA and constitutional claims against federal agencies (administrative enforcement scheme channels review to administrative process and courts of appeals).
- On Jane’s motion, the court granted a preliminary injunction: Highland must treat Jane as female (name/pronouns) and permit her to use the girls’ restroom; the court found Jane likely to succeed on Title IX and equal‑protection claims and would suffer irreparable harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court has jurisdiction over Highland’s pre‑enforcement APA/constitutional challenge to DOE/DOJ guidance | Highland: agency guidance is unlawful; district court may enjoin federal enforcement now | Defendants: Title IX enforcement scheme provides exclusive/adequate administrative and appellate review; pre‑enforcement district court review is precluded | Court: No jurisdiction over Highland’s APA and related constitutional claims; Highland’s motion denied |
| Whether "sex" in Title IX/regulations includes gender identity for access to sex‑segregated facilities | Jane: "sex" includes gender identity; agencies’ guidance reasonable and entitled to Auer deference | Highland: "sex" means biological sex/sex assigned at birth; guidance inconsistent with statute/regulations | Court: Term "sex" is ambiguous; agency interpretation reasonable and entitled to Auer deference; Jane likely to succeed on Title IX claim |
| Whether Highland’s restroom policy violated Title IX (denial of benefits on basis of sex) | Jane: exclusion from girls’ restroom is discrimination based on sex/gender nonconformity causing harm | Highland: policy permissible under 34 C.F.R. §106.33 to segregate by biological sex; privacy/safety interests justify policy | Court: Policy denies access "on the basis of sex" under agency interpretation; Jane demonstrated harm and likely success on Title IX claim |
| Whether Equal Protection requires heightened scrutiny and whether policy survives review | Jane: discrimination against transgender person is sex‑based; quasi‑suspect class; policy fails intermediate scrutiny | Highland: transgender status not protected; rational‑basis review applies; policy serves privacy/safety interests | Court: Applied four‑factor test and found transgender persons quasi‑suspect; Highland’s privacy and safety justifications not "exceedingly persuasive" or supported by evidence; policy fails heightened (and even rational) scrutiny; Jane likely to succeed |
Key Cases Cited
- Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) (framework for whether statutory review scheme precludes district court jurisdiction over pre‑enforcement challenges)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agency interpretations of their own regulations where regulation ambiguous)
- Cannon v. University of Chicago, 441 U.S. 677 (1979) (implied private right of action under Title IX)
- Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (gender‑nonconformity as sex discrimination under Title VII framework)
- G.G. ex rel. Grimm v. Gloucester Cnty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016) (regulations ambiguous; agency interpretation reasonable regarding transgender students’ access)
- Elgin v. Dep’t of Treasury, 567 U.S. 1 (2012) (statutory review scheme can channel constitutional claims to administrative/appellate process)
- Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) (statutory protection may extend beyond principal concerns to reasonably comparable harms)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (sex stereotyping as actionable sex discrimination)