A federal court in Indiana ruled in favor of a transgender student’s motion for summary judgment against a school district whose policies did not permit him to use the facilities that matched his gender identity. After the Seventh Circuit’s decision in Whitaker, it is not terribly surprising that a court in that district court would have no trouble applying Title IX in a transgender student’s favor — and indeed, the court in this case had already granted the plaintiff a preliminary injunction ordering the school to let him use the men’s room. But the court’s most recent decision went beyond the injunction question, is notable for confirming that the district is indeed liable for money damages to compensate the plaintiff for harm caused by its policy of exclusion (though the court deferred to a jury the fact-laden question of when exactly the student’s damages began to accrue).
In reaching this conclusion, the court had to address defendant Evansville Vanderburgh School Corporation’s argument that the plaintiff had not done enough to put the school district on notice of his right to use the boys’ bathroom. Until he filed this lawsuit at the end of his junior year, school officials arguably did not know, for example, that the plaintiff found the gender-neutral option available to him unsatisfactory, that he had begun to transition using hormones, and that he was limiting his water intake to avoid needing to use any bathroom at school. But the court said such notice is not required to establish liability. The uncontested facts were that the school’s policy did not permit him to use the proper bathroom and so his rights were violated. (“EVSC has failed to point to any facts by which a reasonable factfinder could determine that it had any policy other than one requiring transgender students to use a bathroom that did not conform with their gender identify. In sum, EVSC’s practice violated Title IX. The violation occurred regardless of whether EVSC knew that J.A.W. or any other student was affected by its policy.”). Moreover, the school’s policy is an act of intentional discrimination, liability for money damages exists without regard to the actual notice plus deliberate indifference standard that applies when the harm to the plaintiff is caused by someone other than the defendant.
The court also ruled that the school board’s policy violated the Constitution’s Equal Protection clause. Heightened scrutiny applies because the policy cannot be read without referencing the plaintiff’s sex, and school “put forth no justification for its practice in its summary judgment briefing.”
J.A.W. v. Evansville Vanderburgh School Corp., No. 3:18-CV-37-WTL-MPB, 2019 WL 2411342 (S.D. Ind. June 7, 2019).