D.H. ex rel. A.H. v. Williamson Cnty. Bd. of Educ.

638 F.Supp.3d 821

D.H., a minor, BY her next friends A.H., mother, and E.H. father, Plaintiff, v. WILLIAMSON COUNTY BOARD OF EDUCATION, Jason Golden,in his official capacity as Director of the Williamson County Schools,Tennessee Department of Education; and Penny Schwinn,in her official capacity as Commissioner of the Tennessee Department of Education, Defendants.

No. 3:22-cv-00570

United States District Court, M.D. Tennessee, Nashville Division

Filed November 2, 2022

Adam S. Lurie, Benjamin S. Kurland, Linklaters LLP, Washington, DC, Ami Rakesh Patel, Jason Starr, Human Rights Campaign Fund, Washington, DC, Sean Mooney, Linklaters LLP, New York, NY, Tricia Herzfeld, Branstetter, Stranch & Jennings, PLLC, Nashville, TN, for Plaintiff.

Courtney M. King, Lisa M. Carson, Buerger, Moseley & Carson, PLC, Franklin, TN, for Defendants Williamson County Board of Education, Jason Golden.

Alexander Stuart Rieger, Gabriel Joseph Krimm, James Matthew Rice, Tennessee Attorney General's Office, Nashville, TN, for Defendants Penny Schwinn, Tennessee Department of Education.

MEMORANDUM

WILLIAM L. CAMPBELL, JR., UNITED STATES DISTRICT JUDGE

Plaintiff D.H. is an eight-year-old transgender girl.¹ She attends third grade at a public elementary school (the "elementary school") in Williamson County, Tennessee. Due to potential liability created by the Tennessee Accommodations for All Children Act, Tenn. Code Ann. § 49-2-801, et seq. (the "Act"), the elementary school does not allow D.H. to use the multi-occupancy girls' restroom. Shortly before the start of the school year, Plaintiff filed this action against the Williamson County Board of Education ("WCBOE") and Jason Golden, Director of Williamson County Public Schools, (collectively the "Williamson County Defendants"), and Tennessee Department of Education and Penny Schwinn, Commissioner of the Tennessee Department of Education, (collectively, "the Tennessee Defendants"), challenging the Act as violative of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.

Before the Court is Plaintiff's Motion for a Preliminary Injunction. (Doc. No. 5). Plaintiff seeks a preliminary order preventing Defendants from enforcing the Act and requiring them to allow Plaintiff to use the multi-occupancy girls' restroom at the elementary school. In support of the Motion, Plaintiff submitted a memorandum of law (Doc. No. 6), and two declarations from her mother, A.H. (Doc. Nos. 7, 36). The Williamson County Defendants filed a response in opposition (Doc. No. 27), and declarations from the former and current principals of D.H.'s elementary school (Doc. Nos. 28, 29). The Tennessee Defendants filed a separate response. (Doc. No. 30). Plaintiff filed a consolidated Reply. (Doc. No. 35).

I. BACKGROUND

A. The Act

Tennessee enacted the Tennessee Accommodations for All Children Act in May 2021. As applicable to the instant motion, the Act operates by requiring public schools, "to the extent practicable," to provide a "reasonable accommodation" to a student, teacher, or employee who "[d]esires greater privacy when using a multi-occupancy restroom or changing facility designated for [their] sex and located within a public school building." Tenn. Code Ann. § 49-2-803. The Act defines a "reasonable accommodation" as follows:

"Reasonable accommodation" includes, but is not limited to, access to a single-occupancy restroom or changing facility or use of an employee restroom or changing facility. "Reasonable accommodation" does not include the following:

(A) Access to a restroom or changing facility that is designated for use by members of the opposite sex while members of the opposite sex are present or could be present;

(B) Requesting that a school construct, remodel, or in any way perform physical or structural changes to a school facility; or

(C) Requesting that a school limit access to a restroom or changing facility that is designated for use by members of the opposite sex, if limiting access results in a violation of state or local building codes or standards[.]

Tenn. Code Ann. § 49-2-802(2). The Act defines "sex" to mean "a person's immutable biological sex as determined by anatomy and genetics existing at the time of birth." Id. § 49-2-802(4).

Finally, the Act provides students, their parents or legal guardians, teachers, and employees a private right of action to sue public school systems for "psychological, emotional, and physical harm," including monetary damages and "reasonable attorney fees and costs," if they "encounter[ ] a member of the opposite sex [defined as sex at birth] in a multi-occupancy restroom or changing facility located in a public school building . . . [and] the public school intentionally allowed a member of the opposite sex [defined as sex at birth] to enter the multi-occupancy restroom or changing facility while other persons were present." Tenn. Code Ann. § 49-2-805(1)(A)-(C).

B. Sex and Gender Identity

The Court is aware of the progressing conversations regarding sex and gender identity. Indeed, scientific knowledge, whether about human biology or other areas of scientific inquiry, is cumulative and evolving. See National Academy of Sciences, Engineering, and Medicine, Reproducibility and Replicability in Science 5-6 (2019), https://doi.org/10.17226/25303 (explaining that the scientific process "may confirm and extend existing knowledge, or it may upend previous knowledge and replace it with more accurate scientific understanding of the natural world"). Although other courts have considered issues concerning sex and gender identity with the benefit of scientific background from various experts, the parties have not filed expert reports or other scientific evidence in this case. Plaintiff has, however, cited a number of publications and amicus briefs that were filed in Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020), and other reports and journal articles.

A basic understanding of sex and gender identity as those terms are currently used in the scientific community will assist the understanding of the issues presented in this case. Absent expert testimony to define these terms, the Court turns to the definitions provided by the American Psychiatric Association, which appear to reflect current usage of these terms in the scientific community and are in accord with the scientific testimony recently provided in other cases. See e.g., Bongo Productions, LLC v. Lawrence, No. 3:21-cv-00490, 603 F.Supp.3d 584, 595-98 (M.D. Tenn. May 17, 2022); Grimm, 972 F.3d at 594-597; Eli Coleman et al., Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, World Prof'l Ass'n for Transgender Health (WPATH) (7th Version 2012).²

The American Psychiatric Association explains that "sex" and "gender" are often used interchangeably, but they are distinct terms.³ "Sex" ordinarily refers to biological sex as determined based on anatomy and other biological factors. "Gender" is more accurately stated as "gender identity" or "gender expression."⁴ As relevant here, "gender identity" is a person's inner sense of being a particular gender.⁵ "In a human context, the distinction between gender and sex reflects the usage of these terms: Sex usually refers to the biological aspects of maleness or femaleness, whereas gender implies the psychological, behavioral, social, and cultural aspects of being male or female (i.e. masculinity or femininity)."⁶ For the vast majority of people, gender identity is consistent with the biological sex they were assigned at birth.⁷ A transgender individual is one whose gender identity does not align with their biological sex.⁸ As stated by Judge Trauger in another case concerning this topic, "[a]lthough there may be disagreement among people about the normative question of what role gender identity should play in various situations, the purely descriptive fact that gender identity, as a type of internally experienced and reported phenomenon, exists is supported by both medical research and, at least for many people, confirmed by the ordinary experience of being a human." Bongo Productions, LLC v. Lawrence, No. 3:21-cv-00490, 603 F.Supp.3d 584, 596 (M.D. Tenn. May 17, 2022) (emphasis in original).

C. D.H.

D.H. is an eight-year-old transgender girl in third grade at the elementary school in Williamson County, Tennessee. (Compl., Doc. No. 1, ¶ 2). D.H. is experiencing an adjustment disorder, which her psychologist links to her inability to live her life fully as a girl in all respects, including the inability to use the girls' restroom at school. (A.H. Decl., Doc. No. 7, ¶ 18). D.H.'s adjustment disorder materializes in symptoms such as regurgitation, migraines, and nightmares. (Id.).

D.H. attended the same elementary school for kindergarten. In kindergarten, she presented as a boy and used he/him pronouns. She began her social transition in the spring of 2020 during the COVID pandemic and did not attend school in-person using she/her pronouns until first grade (the 2020-2021 school year). (Compl., Doc. No. 1, ¶ 3). In second grade, due to concerns about COVID-19, D.H. attended online school for the first part of the year, and returned to the elementary school in person from January to May 2022. (A.H. Decl., Doc. No. 7, ¶¶ 25-27). She was provided access to the school's four single occupancy restrooms, but was not permitted to use the multi-occupancy girls' restroom. (Compl., Doc. No. 1, ¶¶ 58-59). Plaintiff claims the four single-occupancy restrooms presented concerns. One was far from her classroom, others were unhygienic and unpredictably unavailable or located in places not typically open to students so that she was forced to out herself to staff, and another was outside the school's lockdown zone, which raised safety concerns. (Id., ¶¶59-63; A.H. Decl., Doc. No. 7, ¶ 38).

Teachers often took the whole class to the restrooms at...