Appeals court doesn’t make transgender student wait for the right to pee

The student is too vulnerable and the benefits to her well-being are too obvious to ignore.

CREDIT: istockphoto/ChiccoDodiFC
CREDIT: istockphoto/ChiccoDodiFC

Back in September, a federal judge in Ohio ruled that a transgender fifth-grader with a history of mental health challenges must be allowed to use the restrooms that match her gender. Her school appealed, and a panel of the U.S. Sixth Circuit Court of Appeals concluded 2–1 this week that she must be allowed to continue using the restroom while the case proceeds — a decision that arguably defies the Supreme Court’s current proceedings.

In a brief order issued Thursday, the panel denied Highland Local School District a stay of the lower court’s injunction requiring Jane Doe be allowed access to the restrooms. Despite requesting the stay from the appeals court, the school has obeyed the injunction for the past six weeks, which has greatly alleviated the 11-year-old’s distress. Jane had previously attempted suicide on multiple occasions, and the school had actually argued in court that she didn’t need relief because her suicide risk had been reduced from high to moderate.

The Sixth Circuit’s relief for Jane contradicts the way the Supreme Court is acting in a very similar case, Gloucester County School Board v. G.G.

Gavin Grimm, now a high school senior, has been fighting his Virginia school for several years for the right to access the boys’ room. The Fourth Circuit ruled in his favor, but the Supreme Court stayed that decision and has since taken up the case, keeping Grimm out of the bathroom for the rest of his schooling.

But the Sixth Circuit recognizes that, despite this Supreme Court precedent, Jane’s condition is too vulnerable — and the harm too apparent — to make her wait what would inevitably be at least the full school year for relief:

Permitting Highland to again single her out, and disrupt the status quo, is distinct from the stay granted in Gloucester County, which maintained the status quo as opposed to disrupting it. Maintaining the status quo in this case would protect Doe from the harm that would befall her if the injunction is stayed.

The injuries to Jane, the court concluded, “are not distant or speculative.” To disrupt the injunction would “further confuse a young girl with special needs who would no longer be allowed to use the girls’ restroom, and subject her to further irreparable harm.”


Judge Jeffrey Sutton dissented. Sutton, a George W. Bush appointee, is known for his conservative leanings, including authoring the Sixth Circuit’s opinion upholding bans on same-sex marriage in the case Obergefell v. Hodges, which was later overturned by the Supreme Court. He argued that the panel should have followed the Supreme Court’s lead in Gloucester County, because “similar treatment of similar plaintiffs is the essence of equal justice under law.”

Sutton downplayed Jane’s special needs and the fact that the injunction has already had such an impact on her. “I suspect that the Supreme Court’s decision on the merits in Gloucester County will apply the same rule to all of them regardless of their age or the level of counseling they require,” he explained. In other words, even though there isn’t a Supreme Court precedent that overrules her unique set of circumstances, the Sixth Circuit should ignore them in case such a ruling is issued next year.

Highland is represented by the Alliance Defending Freedom, which has been challenging LGBT protections all over the country and filed many cases specifically opposing transgender inclusion in schools.