Judge grants preliminary injunction to allow EVSC transgender male to use men's restroom

Megan Erbacher | Evansville

Show Caption Hide Caption IndyStar Storytellers: Finding love in the Indiana Statehouse Kit Malone, a transgender advocate and educator at the ACLU of Indiana, talks about how she found love with her partner, Korvin .

EVANSVILLE, Ind. — As Evansville Vanderburgh School Corp. students return to the classroom Wednesday, a student is now permitted to use the restroom consistent with his gender identity after an Indianapolis judge ruled in his favor.

U.S. District Judge William Lawrence of Indianapolis issued a preliminary injunction Friday that requires the EVSC allow a transgender high school student who identifies as male to use male restrooms, according to an American Civil Liberties Union of Indiana news release. EVSC attorney Pat Shoulders said he will appeal the injunction.

The 17-year-old transgender male filed a lawsuit through the ACLU in February suing the EVSC over student bathroom access. Identified in the suit by initials J.A.W., the student argued his rights were violated under the 14th Amendment and Title IX after school administrators reportedly told him to use either women’s restrooms or a private bathroom connected to the nurse’s office, or he may be disciplined.

Lawrence ruled the preliminary injunction was justified as J.A.W. was “likely to prevail” in his claim the refusal to allow him to use male restrooms violated his rights.

“The likely negative emotional consequences of being denied access to the boys’ restrooms at school would constitute irreparable harm to J.A.W.,” Lawrence said in a statement.

In a statement, the EVSC said: "We remain committed to maintaining safe and caring learning environments for all of our students."

Shoulders said the preliminary injunction, by definition, is preliminary and means the order is in effect until there is a final ruling.

“This ruling pertains to one student and one student only out of the 23,000 who will begin the school year on Wednesday,” Shoulders said. “The EVSC will continue as it has in the past to comply with Indiana law and Indiana Department of Education regulations. All federal statutes as interpreted by the U.S. Justice Department and the U.S. Department of Education. All of which seem to suggest that sex is determined biologically not psychologically.”

J.A.W. was diagnosed with gender dysphoria, which the American Psychiatric Association defines as a conflict between a person's physical or assigned gender and the gender with which the person identifies. J.A.W. is taking hormones under a physician’s care to develop male characteristics.

ACLU of Indiana Attorney Ken Falk said the judge’s decision “affirms denying a student his right to use the correct restroom is discrimination, plain and simple.”

“This is consistent with the great wealth of authority and many Indiana school corporations follow the law in this regard,” Falk said in a statement. “I would hope that with this decision those Indiana school corporations that continue to have discriminatory policies in place will take heed and change them without the need for litigation.”

Victory! This decision affirms that denying a student his right to use the correct restroom is discrimination, plain and simple.



Read more here: https://t.co/RYtg1jf5KI pic.twitter.com/LrE03ONWqF — ACLU of Indiana (@ACLUIndiana) August 6, 2018

In late July, J.A.W. sought a preliminary injunction for use of the men’s restroom when school starts Wednesday. Only two people testified during the 90-minute hearing in Evansville on July 20: J.A.W. and EVSC Superintendent David Smith.

During testimony, the teen told Shoulders all requests he has made to the school district, such as how he should be addressed and how he may dress, have been accommodated, except for his desire to use the male restroom.

The student also told Shoulders his driver’s license and other legal documents still designate him as female.

Smith said repeatedly during his July 20 testimony the school district has an “objective standard” in bathroom usage, and a child’s birth certificate is the standard.

Smith said under Falk’s questioning that J.A.W. could be disciplined for using the men’s restroom. Smith said he did not learn until mid-June of the student's gender dysphoria diagnosis.

Smith testified if a birth certificate or a comparable document was changed to identify the student as male, then the student could use the male restroom. However, Falk stated J.A.W. was born outside of Indiana in a state that doesn't change birth certificate gender identification unless a surgery takes place.

Smith testified if schools used “subjective rule” in governing bathroom policy “it would result in chaos.”

ACLU of Indiana Advocate and Educator Kit Malone stated Lawrence's ruling will help ensure J.A.W. doesn’t endure emotional hardships or possibly increased bullying.

“Schools should be a safe place for kids, and the refusal to allow a student to use the correct restroom can be extremely emotionally damaging,” Malone said.

J.A.W plans to graduate from high school in December.

Shoulders said the ACLU didn’t call a live witness during the July injunction hearing, but submitted evidence via written affidavits, meaning the EVSC hasn’t had a chance to cross-examine the ACLU’s expert witnesses.

A date has not been set for the final hearing.

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