Tirrell v. Edelblut

1

Parker Tirrell, et al. v. Frank Edelblut, et al.

No. 24-cv-251-LM-TSM

United States District Court, D. New Hampshire

August 22, 2024

Opinion No. 2024 DNH 069 P

ORDER

LANDYA MCCAFFERTY UNITED STATES DISTRICT JUDGE

Two minor plaintiffs, by and through their respective parents and next friends, bring this action against the Commissioner of the New Hampshire Department of Education, members of the New Hampshire State Board of Education, the Pemi-Baker Regional School District and members of its School Board, and the Pembroke School District and members of its School Board. Plaintiffs allege that defendants' enforcement of a recently enacted New Hampshire law prohibiting transgender girls (i.e., people who were born biologically male but who identify as female) from participating in girls' sports violates their rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments of 1972, 20 U.S.C § 1681 et seq. Presently before the court is plaintiff Parker Tirrell's motion for a temporary restraining order.^[1] Doc. no. 6. The court held a hearing on Parker's motion on August 19, 2024. The court orally granted Parker's motion at that hearing and explained that a written order would follow setting forth the court's finding of facts and rulings of law. This is that order.

STANDARD OF REVIEW

“A temporary restraining order ‘is a provisional remedy imposed to maintain the status quo until a full review of the facts and legal arguments is available.'” Ginzburg v. Martinez-Davila, 368 F.Supp.3d 343, 347 (D.P.R. 2019) (quoting ProChoice Network v. Schenck 67 F.3d 377, 388-89 (2d Cir. 1995)). A temporary restraining order (“TRO”) is nevertheless an extraordinary remedy which must be granted “sparingly and only in cases where the need for extraordinary equitable relief is clear and plain.” Nw. Bypass Grp. v. U.S. Army Corps of Eng'rs, 453 F.Supp.2d 333, 338 (D.N.H. 2006) (quotation omitted).

In evaluating a motion for a TRO, the court considers the same four factors that apply to a motion for a preliminary injunction. Karlsen v. Town of Hebron, Civ. No 18-cv-794-LM, 2018 WL 11273651, at *1 (D.N.H. Sept. 28, 2018). Those factors are: the movant's likelihood of success on the merits; the movant's likelihood of irreparable harm in the absence of relief; the balance of equities; and whether injunctive relief is in the public interest. Id. Likelihood of success and irreparable harm are the most important factors. Strahan v. McNamara, 642 F.Supp.3d 204, 207 (D.N.H. 2022). When, as here, the defendants are government entities or officials sued in their official capacities, the balance of equities and the public interest factors merge. Does 1-6 v. Mills, 16 F.4th 20, 37 (1st Cir. 2021).

FINDINGS OF FACT^[2]

The phrase “gender identity” is an accepted medical term for a person's innate sense of gender. Everyone has a gender identity, and it may or may not align with their biological sex or anatomy. A transgender girl is a person who was born with a male anatomy but whose gender identity is female.

Transgender people experience a medical condition known as gender dysphoria. Gender dysphoria is a medical condition recognized in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”). Gender dysphoria results from a lack of alignment between one's birth sex and gender identity. If left untreated, it may result in anxiety or depression, eating disorders, substance abuse, and even suicide. Providers treat gender dysphoria through medical interventions that allow patients to live more consistently with their gender identity. In addition, social acceptance of one's gender identity is critical to a transgender person's mental health and sense of wellbeing.

When a transgender girl and her parents seek treatment for gender dysphoria prior to the onset of puberty, providers may prescribe puberty-blocking medication to prevent the development of physical characteristics that conflict with the child's gender identity. When this occurs, the transgender girl will not experience male puberty and will not experience physical changes caused by testosterone, such as male muscular development, facial hair, or an Adam's apple. The provider may thereafter prescribe hormones to induce female puberty. If this course of treatment is followed, the transgender girl typically has the same levels of estrogen and testosterone as other girls and significantly lower testosterone than pubescent boys.

Before puberty, there are no significant differences in athletic performance between boys and girls. After puberty, boys on average perform better than girls in most sports. Disparities in testosterone production drive this divergence. After puberty, boys produce significantly more testosterone than girls, which results in increased muscle mass and strength. A transgender girl who does not experience male puberty and who receives hormone therapy to induce female puberty will not have an athletic advantage over other girls as a result of being born with a male anatomy.

Plaintiff Parker Tirrell is a fifteen-year-old transgender girl entering her sophomore year at Plymouth Regional High School. She knew she was a girl from an early age, and preferred dressing as a girl when at home, engaging in stereotypically female childhood activities, and socializing with other girls. At age twelve, Parker, who had not yet begun living as a girl in all aspects of her life, began experiencing mental distress. She and her parents sought mental health treatment. During the summer between her seventh- and eighth-grade years, Parker was evaluated at a health clinic by a team of providers that specialize in diagnosing and treating gender dysphoria in children and adolescents. Ultimately, Parker was diagnosed with gender dysphoria.

Parker's treatment for gender dysphoria first involved socially transitioning and living as a girl. At the start of her eighth-grade year in school, Parker began using female pronouns, wearing dresses and skirts to school, and living as a girl in all aspects of her life. This included participating in girls' sports and using girls' facilities at school. She began taking medications to block male puberty in May 2023, toward the end of her eighth-grade year. She began female hormone therapy in December 2023 while in ninth grade. Her treatment has caused her to develop physiological changes associated with female puberty. She will not undergo male puberty.

Sports have always been a big part of Parker's life. She has played in elementary, middle, and high school and in town recreational leagues. Sports are how Parker makes friends and connects with others. While she has participated in a variety of school sports, soccer is her passion. In eighth grade, she played on the girls' soccer and track teams at Plymouth Elementary School.^[3] In ninth grade, she played on the girls' soccer team at Plymouth Regional High School. Her high school soccer team is her primary social outlet, both on and off the field. Most of her friends are her teammates, and they have given Parker an important source of acceptance, belonging, and emotional support.

Playing on a boys' soccer team is not a realistic option for Parker. Parker's providers have prescribed treatment requiring her to live and participate in the world as a girl. Playing on a boys' soccer team would likely have adverse impacts on Parker's mental health and would exacerbate symptoms of gender dysphoria.

On July 19, 2024, New Hampshire enacted House Bill 1205 [hereinafter “HB 1205”]. 2024 N.H. Laws Ch. 228. In general terms, HB 1205 prohibits transgender girls from participating in girls' school sports. See RSA 193:41. The law took effect on August 18, 2024-one day before the first day of practice for Parker's high school soccer team.

Parker and another minor plaintiff, Iris Turmelle (by and through her parents and next friends), filed this action on August 16, 2024. The complaint brings four counts, two of which relate to Parker. In Count I, Parker alleges that HB 1205 violates her rights under the Equal Protection Clause of the Fourteenth Amendment. In Count II, Parker alleges that HB 1205 violates her rights under Title IX. Both counts seek declaratory and injunctive relief. All individually named defendants are sued only in their official capacities.

On the same day plaintiffs filed their complaint, Parker also filed a motion for a TRO (doc. no. 6) and both plaintiffs filed a motion for a preliminary injunction (doc. no. 7). The TRO motion relates only to Parker, while the preliminary injunction motion relates to both plaintiffs.^[4] Parker argues in the TRO motion that the denial of immediate relief would cause her irreparable harm because she would be prohibited from playing on her school soccer team solely because she is a transgender girl, which would stigmatize her, undermine her treatment, and deprive her of the critical developmental experience of participating in high school sports. At a hearing on August 19, 2024, the court orally granted Parker's motion for a TRO and indicated that a written order setting forth findings of fact and rulings of law would follow.

RULINGS OF LAW

As noted, to obtain a TRO, a plaintiff must demonstrate a likelihood of success on the merits, a likelihood of irreparable harm in the absence of relief, that the balance of equities is in her favor, and that injunctive relief is consistent with the public interest. Karlsen, 2018 WL 11273651, at *1. The court will consider each area in turn.

I. Parker Is Likely to Succeed on the Merits of Her Equal Protection Claim

The Equal Protection Clause provides that “[n]o state shall . . . deny to any...