by Aryn Fields •
The Lawsuit is Filed on Behalf of a Transgender Girl, Age 8, as School Starts this Week
The Human Rights Campaign joined by the law firm of Linklaters, filed a federal civil rights lawsuit against the Williamson County Board of Education and the Tennessee Department of Education in the District Court for the Middle District of Tennessee challenging a discriminatory law that denies transgender students, faculty, and staff access to the bathroom, locker rooms and other sex-segregated facilities consistent with their gender identity.
In 2021, Tennessee enacted five anti-transgender laws after its legislative session and one of those laws, the “Business Bathroom Bill,” has already been preliminarily enjoined by a federal court. Last year, HRC Foundation filed a similar lawsuit in Tennessee challenging the same bathroom law, but due to the plaintiffs moving out of state, that lawsuit was dismissed.
“It is unfortunate that Tennessee lawmakers are using their authority to attack some of our nation’s most vulnerable—our children. These power-seeking politicians will not stop pandering to their base, even if it means controlling which restrooms an eight year old uses at school,” said Cynthia Cheng-Wun Weaver, Human Rights Campaign Litigation Director. “We should all be inspired by D.H.’s strength and determination to fight for the right to be who she is. She, and all transgender and nonbinary children in Tennessee, deserve to be affirmed and encouraged to be who they are, in all aspects of their lives.”
The case is brought on behalf of D.H., an 8-year-old transgender girl entering the third grade, and her mother, A.H., and father, E.H. With the support of her family, D.H. began her social transition at age 6, meaning that D.H. began living in accordance with her gender identity as a girl in all aspects of her life. During that time, D.H. was often misgendered by teachers and bullied and harassed by students when she attempted to share her gender identity with them. A.H. and E.H. approached the elementary school administration, expressing the desire for D.H. to be treated by her peers and teachers as a girl. The school initially agreed to use she/her pronouns to address D.H and instructed her to tell each of her 19 classmates individually of her transgender identity. After two failed attempts at this approach, including classmates becoming argumentative and hostile, D.H. stopped trying and began hiding her face.
“Years ago, I chose to move to Tennessee because it was known as ‘the volunteer state,’ whose citizens cared for their neighbors without hesitation—not a state that legalizes discrimination against helpless children,” said A.H., Mother of D.H. and Plaintiff. “Now, I am embarrassed to say that I live in a state that refuses to see anything beyond my child's gender. She is a bright, friendly, funny, creative, enthusiastic, little girl and is always the first kid to cheer you on if you are struggling. By filing this lawsuit, I am showing my volunteer spirit—because I’m fighting to not only affirm my child's existence, but also the thousands of transgender and nonbinary children who live in Tennessee.”
While D.H. was experiencing that trauma at school, her parents made multiple attempts to speak with school administrators about her transition and how the school could support D.H. By that time, however, the administration could not provide D.H. with the support she needed to complete her social transition as the School Facilities Law had come into full effect, preventing D.H. from using the restrooms corresponding with her gender identity. Instead, D.H. was forced to use one of four single-occupancy restroom facilities at the school—each of which presented its own issues. These issues included D.H. having to clean restrooms covered in human waste before using them and outing herself as transgender to other students or janitorial staff. Limiting D.H. to the use of these “alternative” restrooms reinforces the differential treatment and trauma associated with living under the School Facilities Law.
The plaintiffs allege that the Tennessee law violates Title IX of the Education Amendments of 1972; Title IX expressly prohibits discrimination on the basis of sex in federally funded education programs. The Department of Justice also issued a memorandum last year affirming that Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of gender identity and sexual orientation in federally-funded education institutions, including public schools. The lawsuit also alleges that the law violates the Equal Protection and Due Process Clauses of the U.S. Constitution. Last year, the U.S. Supreme Court’s decision to deny certiorari in Grimm v. Gloucester County School Board left in place a federal circuit court decision recognizing the rights of transgender students under the Equal Protection Clause and Title IX.
“We are proud to support this family alongside the Human Rights Campaign on this important pro bono project,” said Adam Lurie, Head of Linklaters’ U.S. Dispute Resolution Practice. “There’s no place for this anti-LGBTQ legislation anywhere in the United States.”
Analyses conducted in the aftermath of previous divisive anti-transgender bills across the country, like the bathroom bills introduced in Texas and North Carolina show that there would be or has been devastating economic fallout. In 2016, North Carolina passed HB 2, termed the most anti-LGBTQ+ legislation that year, and The Associated Press projected that the North Carolina bathroom bill could have cost the state $3.76 billion over 10 years. Furthermore, HRC and Hart Research Group conducted a 10-swing-state poll in 2020 that found at least 60% of conservative voters across each of the 10 swing states say transgender people should be able to live freely and openly.
“Transgender and non-binary students deserve schools focused on their success and free of discrimination. We are unwavering in our support of the Human Rights Campaign as they work to advance equal protection of the law for these students in court,” said Chris Sanders, Tennessee Equality Project Executive Director.
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