March 13, 2018 at 1:50 pm EST | by Chris Johnson
Judge issues decision favorable to Md. trans student on locker room use
Max Brennan, gay news, Washington Blade, trans student

Max Brennan (Photo courtesy of Max Brennan)

A federal judge in Maryland has issued a decision favorable to a transgender student whose school has barred him from the locker room consistent with his gender identity.

In a 40-page decision, U.S. District Judge George Russell III, an Obama appointee, stopped short Tuesday of issuing a preliminary injunction in favor of Max Brennan, identified as M.A.B in the lawsuit, but nonetheless finds St. Michaels Middle High School in Talbot County’s policy “does not withstand” heightened scrutiny and amounts to unlawful sex-stereotyping.

“Because defendants contend that they may bar M.A.B. from the boys’ locker room completely — despite the presence of single-use restrooms or stalls — by implication, defendants are arguing that the presence of M.A.B. in the boys’ locker room — itself — is what infringes on the privacy rights of other boys,” Russell writes. “Defendants do not provide any explanation for why completely barring M.A.B. from the boys’ locker room protects the privacy of other boys changing there, while the availability of single-use restrooms or locker room stalls does not. Nor does the Court find any.”

The ruling is consistent with decisions from numerous courts throughout the country finding that barring transgender students from the restroom consistent with their gender identity amounts to sex discrimination, which is unlawful under Title IX of the Education Amendments of 1972.

In a statement, Brennan said he’s “extremely happy with the court’s decision” and thinks “it is a great step in the right direction.”

“I am hopeful that this case will not only help change policy for the better, but help the students who are bound to come after me,” Brennan said.

According to the decision, the school initially required Brennan to use designated single-use gender neutral bathrooms, but then allowed him to use boys’ restrooms consistent with his gender identity. Still, the school prohibited Brennan from using the boys’ locker room, instead making him use the gender neutral bathroom whenever he needed to change his clothes.

As a result, Russell writes, Brennan has faced “humiliation and embarrassment, as well as alienation from his peers.” The student received “weird looks” from his peers when using the designated restroom, so has tried to use them infrequently, Russell writes.

Because the bathrooms are far away from Brennan’s locker, his physical education teacher gave him extra time to change. But when substitute teachers were present, they required him to explain why he was tardy to class, forcing him to out himself as transgender.

“The ‘stigma and impracticality’ of changing his clothes in the designated restrooms led M.A.B. to attend physical education class without changing when he thought he would not sweat very much,” Russell adds. “At times, his physical education teacher penalized M.A.B.’s grade for not changing his clothes.”

Russell notes precedent exists in the Fourth Circuit on bathroom access for transgender students after the U.S. Fourth Circuit Court of Appeals’ decision in favor of transgender student Gavin Grimm. However, Russell writes that “no longer resolves” the situation because it’s based on Obama-era guidance assuring transgender kids access to school restrooms consistent with their gender identity, which was rescinded in the Trump administration.

Instead, Russell turns for guidance to Title IX and concludes Brennan is eligible for a claim of unlawful sex-stereotyping, referring to a decision by the U.S. Seventh Circuit Court of Appeals in favor of Ash Whitaker, another transgender student.

“The main difference between the policy in Whitaker and defendants’ policy here is that the school administrators in Whitaker barred the student from the boys’ restrooms, whereas here, defendants barred M.A.B. from the boys’ locker room,” Russell writes. “That difference does not change the court’s Title IX analysis. Like the policy in Whitaker, defendants’ policy of barring M.A.B. from the boys’ locker room requires him to use a facility that ‘does not conform’ with his gender identity.”

Further, Russell finds M.A.B. is eligible for relief under the Equal Protection Clause of the Fourteenth Amendment because they both require sex discrimination and transgender discrimination to be subjected to heightened scrutiny.

“The policy clearly implicates the Equal Protection Clause,” Russell writes. “It treats M.A.B. differently from the rest of the High School’s students. While the rest of M.A.B.’s peers may use the locker room that aligns with their gender identity, M.A.B. may not. Instead, Defendants discipline M.A.B. if he uses such a locker room — the boys’ locker room.”

As evidence that transgender people are politically powerless, Russell notes “there are very few transgender elected officials” and only two openly transgender people have been elected to state legislatures.

“Transgender people have been historically subjected to discrimination, their status bears no relation to their ability to contribute to society, they exhibit immutable and distinguishing characteristics, and they are both a minority and politically powerless,” Russell concludes.

Russell also rejects out of hand the argument from the school the policy is lawful because it protects the privacy of other male students in the locker room who may be exposed to M.A.B.’s genitals.

“If defendants were concerned that children with different-looking anatomies were changing clothes in the locker room together, ‘then it would seem that separate [locker rooms] also would be appropriate for pre-pubescent and post-pubescent children who do not look alike anatomically,'” Russell writes. “But defendants have not separated locker rooms in that manner.”

But Russell denies Brennan’s request for a preliminary injunction in his favor as well as the school’s request for summary judgment to throw out the lawsuit, ordering the parties to confer to come up with a joint proposed scheduling order in time for a hearing on Sept. 4.

The judge denies the preliminary injunctions without prejudice on the basis M.A.B. isn’t in imminent danger under school policy because he’s not currently enrolled in a gym and won’t be until fall 2018.

“Of course, it is certain M.A.B. will take physical education class when the following school year begins this September,” Russell writes. “Still, it is ‘speculative’ whether the school year will begin before the court will issue a
decision on the merits.”

Sasha Samberg-Champion, a civil rights attorney with the D.C.-based Relman, Dane & Colfax PLLC, said the decision is ” is everything that advocates could want,” even though the court stopped short of issuing a preliminary injunction in Brennan’s favor.

“That Judge Russell did not also grant a preliminary injunction — yet — is likely a good thing,” Samberg-Champion said. “A PI would be immediately appealable to the Fourth Circuit, and then potentially to the Supreme Court, which would consider the case at a very preliminary posture with a relatively undeveloped record. Instead, the parties have a few months to potentially resolve the situation without further litigation and, at worst, to better develop the factual record before Judge Russell hears a renewed motion in late summer or early fall.”

Arguing “we do better in these cases the more we develop the facts,” Samberg-Champion predicted the school will be unable to come up with evidence showing its privacy claims are reasonable, which means “the plaintiff’s case for a PI will be even stronger, and will be better suited to be upheld on appeal.”

Representing Brennan was FreeState Justice, which initially filed the lawsuit, and the American Civil Liberties Union and the ACLU of Maryland, which later on joined as co-counsel.

Jennifer Kent, managing attorney with FreeState Justice, said she hopes the decision for Brennan “is a wake-up call for the Talbot County School Board.”

“School systems in Maryland should know the law and should be protecting students who are transgender from discrimination, not singling them out for separate and unequal treatment,” Kent said.

Joshua Block, a senior staff attorney at the ACLU LGBT & HIV Project, said the decision is consistent with other court rulings throughout the country.

“Courts across the country have recognized that Title IX and the Constitution prohibit schools from singling out transgender students for different and discriminatory treatment,” Block said. “We will continue to fight on behalf of Max and other transgender students to ensure that these stigmatizing and harmful policies are a thing of the past.”

Attorneys for Talbot County Public Schools didn’t immediately respond to the Washington Blade’s request for comment.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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