Posted on February 02, 2023
On January 9, 2023, the American Civil Liberties Union (ACLU) of Ohio filed a motion and brief to intervene in a lawsuit filed in federal court. The original lawsuit was filed by parents of students who attend the Bethal Local School District (the District). The suit was filed to prevent the District from allowing transgender students to use the bathroom aligned with their gender identity. The ACLU was able to file a motion to intervene on behalf of a transgender student because the student had a legitimate interest in the litigation. The motion and brief filed asked the court to find that transgender students be allowed to use the bathroom aligning with their gender identity. The ACLU argued that transgender students should not only have the option of using single-stall bathrooms but should also be allowed to use the bathroom that aligns with their gender identity. The motion also asked for the court to deny the preliminary injunction which would make it so the school would not allow transgender students to use the bathroom aligned with their gender identity until the litigation was completed.
The brief filed in support of the motion explains that the parents of children enrolled in the district allege that allowing transgender students to use bathrooms aligned with their gender identity infringes on the other students’ rights to exclude these students from the bathroom. ACLU’s brief points out that the other children still have access to single-person bathrooms, so they are not being denied access to gendered bathrooms if that is what they choose to use. If transgender students are forced to use single-person bathrooms they are being forced to do something the other students have a choice to do. The brief was filed on behalf of a transgender female student, Anne, and claims that because not allowing her to use the bathroom aligned with her gender identity would cause her irreparable harm, she has a substantial interest in the litigation that the parties do not have.
When Anne started transitioning in 6th grade, she used the single-person bathrooms. The brief alleges this became untenable because she was being outed as transgender which subjected her to transphobic remarks, slurs, and physical harassment. Anne eventually stopped drinking liquid to avoid using the bathroom, leading to different medical complications. Once Anne started being allowed to use the female-designated bathrooms when she entered high school, she started feeling more welcome and is completely flourishing.
The brief argues Anne has a significant interest in the litigation as the outcome will directly impact her ability to use the bathroom at school and could have negative social and health outcomes she experienced in the past and would impair her ability to fully participate in school life.
What this means: Many lawsuits concerning transgender students using bathrooms aligned with their gender identity are popping up all over the country. Since there was just a federal circuit court split between the 9th Circuit and the 11thCircuit and organizations like the ACLU intervening, we expect to see this issue reach the Supreme Court. For now, policies allowing transgender students to use the bathroom aligned with their gender identity are constitutional in the 9thCircuit, where Montana is located.
Read the motion and brief here.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, and Kevin at 406-542-1300 to discuss these issues.