B.E. v. Vigo Cnty. Sch. Corp.

608 F.Supp.3d 725

B.E., S.E., Plaintiffs,

v.VIGO COUNTY SCHOOL CORPORATION, Principal, Terre Haute North Vigo High School, Defendants.

No. 2:21-cv-00415-JRS-MG

United States District Court, S.D. Indiana, Terre Haute Division.

Signed June 24, 2022

Kathleen Belle Bensberg, Indiana Legal Services, Indianapolis, IN, Kenneth J. Falk, Stevie J. Pactor, ACLU of Indiana, Indianapolis, IN, Megan Stuart, Indiana Legal Services, Inc., Bloomington, IN, for Plaintiffs.

Jonathan Lamont Mayes, Mark Wohlford, Philip R. Zimmerly, Bose McKinney & Evans, LLP, Indianapolis, IN, for Defendants.

Julia Catherine Payne, Melinda Rebecca Holmes, Thomas M. Fisher, Indiana Office of the Attorney General, Indianapolis, IN, for Amicus States of Indiana, Alabama, Alaska, Arkansas, Georgia, Idaho, Kentucky, Mississippi, Montana, Nebraska, South Carolina, South Dakota, Tennessee, and West Virginia as Amici Curiae Office of the Indiana Attorney General IGC South.

Order on Motion for Preliminary Injunction

JAMES R. SWEENEY II, JUDGE

2022 marks fifty years of Title IX and its prohibition of discrimination "on the basis of sex" in educational programs and activities receiving federal financial assistance. 20 U.S.C. § 1681(a). Plaintiffs B.E. and S.E., transgender boys attending Terre Haute North Vigo High School, moved for a preliminary injunction, (ECF No. 12), contending that the School's refusal to allow them to use the male restroom and locker room violates Title IX and the Equal Protection Clause. Because the Court finds that Plaintiffs have shown a likelihood of success on the merits of their Title IX claim, and that the other requirements of a preliminary injunction are satisfied, the Court grants the Motion for a Preliminary Injunction.

Background

Plaintiffs were designated female at birth but have identified as male since they were about eleven years old; they are now fifteen. (B.E. Decl. ¶¶ 2–5, ECF No. 22-4; S.E. Decl. ¶¶ 2–5, ECF No. 22-5.) They use names and pronouns that reflect their male identities, wear masculine clothes, and have masculine haircuts, all of which leads others to perceive them—correctly, in Plaintiffs’ view—as boys. (B.E. Decl. ¶¶ 6–8, ECF No. 22-4; S.E. Decl. ¶¶ 6–8, ECF No. 22-5.) Plaintiffs have begun gender-affirming testosterone therapy, which initiates anatomical and physiological changes consistent with the male gender, such as deepening of the voice and the growth of facial hair. (Dr. James D. Fortenberry Suppl. Decl. ¶¶ 7–8, ECF No. 43-6; B.E. Decl. ¶ 24, ECF No. 22-4.) Plaintiffs also have legally changed their names and gender identification, and their birth certificates have been amended to reflect their masculine names and male gender.¹ (L.E. Suppl. Decl. ¶¶ 2–3, ECF No. 43-9; id. at Ex. 1–2.)

Plaintiffs have been diagnosed with gender dysphoria, a condition defined by the American Psychiatric Association as "a marked incongruence between one's experienced/expressed gender and assigned gender." (Fortenberry Decl. ¶¶ 21, 36, ECF No. 22-2 (citing Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders (5th ed. 2013)); B.E. Decl. ¶ 19, ECF No. 22-4; S.E. Decl. ¶ 19, ECF No. 22-5.) Untreated gender dysphoria can result in "significant distress, clinically significant anxiety and depression, self-harming behaviors, substance abuse, and suicidality." (Fortenberry Decl. ¶ 18, ECF No. 22-2.) Specifically, denial of the use of toilet facilities consistent with an individual's expressed gender is an "ever-present source of distress and anxiety," which is linked to "increases in self-harming behaviors including suicidality." (Id. ¶ 31.) The principal treatment of gender dysphoria is "to allow the young person full expression of their experienced gender identity," which includes allowing individuals to express their gender "with social behaviors consistent with their experienced gender." (Id. ¶¶ 26, 29.) Hormone therapy can also help. (Id. ¶ 26.) Allowing the person to express themselves in a manner consistent with their gender identity is "an essential component of amelioration of gender dysphoria that is essential to future mental health," and support in doing so "at least partially ameliorates" gender dysphoria and its negative consequences. (Id. ¶¶ 28, 29; Dr. Janine M. Fogel Decl. ¶¶ 21–23, ECF No. 22-1.)

Plaintiffs used the boys’ bathrooms at the beginning of the school year without incident. (B.E. Decl. ¶¶ 10–11, ECF No. 22-4; S.E. Decl. ¶¶ 10–11, ECF No. 22-5; Stacy Mason Dep. 29–30, ECF No. 43-1.) A school employee noticed their use and reported it. (B.E. Decl. ¶¶ 11–14, ECF No. 22-4.) The vice principal then instructed Plaintiffs that they can only use the girls’ bathrooms or the unisex bathroom in the health office and that they may be disciplined if they use the boys’ bathrooms. (Id. ; Mason Dep. 39, ECF No. 43-1.) It is the School's position that Plaintiffs cannot use the boys’ facilities "without surgical or anatomical change." (Mason Dep. 18, 22, 41–42, ECF No. 43-1.)

Plaintiffs have been using the health office bathroom because using the girls’ bathroom "feels wrong," makes Plaintiffs extremely anxious and upset, and causes confusion among peers who do not know that Plaintiffs are transgender, forcing Plaintiffs to explain why they are using the girls’ bathroom. (B.E. Decl. ¶¶ 18, 22–23, ECF No. 22-4; S.E. Decl. ¶¶ 18, 22–23, ECF No. 22-5.) The health office bathroom is far away from Plaintiffs’ classes, which makes them late for class when they need to use the restroom between classes and causes them to miss more class when they need to use the restroom during class. (B.E. Decl. ¶ 26, ECF No. 22-4; S.E. Decl. ¶ 26, ECF No. 22-5.) Similarly, Plaintiffs arrive late, and separately from other students, to gym class, as they change in the health office bathroom. (B.E. Decl. ¶ 30, ECF No. 22-4; S.E. Decl. ¶ 30, ECF No. 22-5.) Vigo County School Corporation's Director of Secondary Education, Stacy Mason, is not aware of any other students who use the health office bathroom, other than students who are in the nurse's office for a health issue. (Mason Dep. 35–36, ECF No. 43-1.) There have also been a few instances when the health office bathroom has been locked, and Plaintiffs had to "hold it" while they waited for it to be unlocked. (B.E. Dep. 35–36, ECF No. 29-3; S.E. Dep. 21–22, ECF No. 29-2.) As a result, Plaintiffs try to avoid going to the bathroom at all when at school. (B.E. Decl. ¶ 29, ECF No. 22-4; S.E. Decl. ¶ 29, ECF No. 22-5.)

This is compounded by Plaintiffs’ lifelong gastrointestinal problems, which require Plaintiffs to use the bathroom frequently and urgently and to take laxatives. (B.E. Decl. ¶ 20, ECF No. 22-4; S.E. Decl. ¶ 20, ECF No. 22-5; B.E. Dep. 27, ECF No. 29-3.) The Parties dispute how frequently Plaintiffs have had restroom accidents at school, but they agree that at least once in high school, Plaintiffs’ mother brought S.E. a change of clothes because of an accident. (L.E. Dep. 76–83, ECF No. 29-1.) Additionally, Plaintiffs’ mother once picked B.E. up from school because B.E.’s stomach hurt from "holding it." (L.E. Dep. 76–83, ECF No. 29-1; B.E. Dep. 33–35, ECF No. 29-3.)

Legal Standard

A plaintiff seeking a preliminary injunction must show that "(1) they will suffer irreparable harm in the absence of an injunction, (2) traditional legal remedies are inadequate to remedy the harm, and (3) they have some likelihood of success on the merits." Camelot Banquet Rooms, Inc. v. U.S. Small Bus. Admin. , 24 F.4th 640, 644 (7th Cir. 2022). If those elements are shown, the court must "balance the harm" the plaintiff would suffer if an injunction is denied against the harm the opposing party would suffer if one is granted, "and the court must consider the public interest, which takes into account the effects of a decision on non-parties." Id.

Discussion

Plaintiffs assert that Defendants’ actions violate both Title IX and the Equal Protection Clause of the Fourteenth Amendment. (Compl. ¶ 1, ECF No. 1.) Because the Court agrees that Plaintiffs are likely to succeed on the merits of their Title IX claim, the Court does not address the Equal Protection Clause argument. See, e.g. , ISI Int'l, Inc. v. Borden Ladner Gervais LLP , 256 F.3d 548, 552 (7th Cir. 2001), as amended (July 2, 2001), ("[F]ederal courts are supposed to do what they can to avoid making constitutional decisions, and strive doubly to avoid making unnecessary constitutional decisions.").

A. Likelihood of Success on the Merits

Title IX provides that no person "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). Defendants admit that they receive federal funding and therefore are covered by Title IX. (Answer ¶ 44, ECF No. 27.)

At the heart of the Parties’ dispute are the Supreme Court's decision in Bostock v. Clayton County , ––– U.S. ––––, 140 S. Ct. 1731, 207 L.Ed.2d 218 (2020), and the Seventh Circuit's decision in Whitaker v. Kenosha Unified School District No. 1 Board of Education , 858 F.3d 1034 (7th Cir. 2017), abrogated on other grounds by Illinois Republican Party v. Pritzker , 973 F.3d 760 (7th Cir. 2020).

Bostock established that Title VII's prohibition of discrimination "because of such individual's ... sex" encompasses discrimination because an individual is homosexual or transgender. Bostock , 140 S. Ct. at 1741–43 ; 42 U.S.C. § 2000e-2(a)(1). More precisely, the Court held that an employer violates Title VII when it fires an individual for being homosexual or transgender. Bostock , 140 S. Ct. at 1753. The Court reasoned that "it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex;" "homosexuality and transgender status are inextricably bound up with sex." Id. at 1741–42.

Three years before Bostock , the Seventh Circuit decided Whitaker . There, ...