Dodds v. United States Department of Education , 2016 FED App. 0291P ( 2016 )

The court delivered a

PER CURIAM

order. SUTTON, J. (pp. 222-24), delivered a separate dissenting opinion.

ORDER

Plaintiffs Highland Local School District Board of Education, Highland Local School District, its superintendent, and its principal (“Highland”) appeal a preliminary injunction ordering the school district to treat an eleven-year old transgender girl as a female and permit her to use the girls’ restroom. Highland moves to stay the injunction pending appeal and to file an appendix under seal which contains documents filed under seal in the district court. Third-Party Plaintiff Jane Doe, a minor and special needs student, by and through her legal guardians, opposes a stay. Defendants, various government entities and individuals, have not responded to the motion to stay. Highland filed a reply. Doe moves for leave to file a sur-reply, and Highland opposes the motion.

First, we address the procedural motions. Highland moves to file a declaration of Attorney Steven O’Ban in support of its motion to stay under seal because it contains exhibits that were filed under seal in the district court. Highland is correct that “[documents sealed in the lower court ... must continue to be filed under seal in this court.” 6th Cir. R. 25(h)(5). But O’Ban’s declaration does not contain any confidential information, and only four of the exhibits attached to his declaration were filed under seal in the district court and are electronically inaccessible. Therefore, only those four exhibits need to be filed under seal. Thus, we need only grant the motion in part.

Doe moves for leave to file a sur-reply so that she may respond to an argument raised for the first time in Highland’s reply to the motion for stay. Although Highland does not specifically argue that the district court abused its discretion in failing to conduct an evidentiary hearing, it does allege that we need not give deference to the district court’s factual findings because it did not conduct an evidentiary hearing. Doe, in her sur-reply, notes that Highland concurred with her that no evi-dentiary hearing was necessary. Because Doe’s sur-reply is relevant, we will grant the motion to file a sur-reply.

Next, we address the motion to stay the preliminary injunction. “A stay is an intrusion into the ordinary processes of administration and judicial review.” Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (citation omitted). To determine whether to stay the grant of a preliminary injunction, we balance four factors: the movant’s likelihood of success on appeal; whether irreparable injury to the movant will result in the absence of a stay; prospective harm to others if a stay is granted; and the public’s interest in granting a stay. See Mich. Coal. of Radioactive Mat. Users, Inc. v. Griep entrog, 945 F.2d 150, 153 (6th Cir. 1991). “The first two factors ... are the most critical.” Nken, 556 U.S. at 434, 129 S.Ct. 1749.

The crux of this case is whether transgender students are entitled to access restrooms for their identified gender rather than their biological gender at birth. To demonstrate a likelihood of success on the merits, the movant must show, “at a minimum, serious questions going to the merits.” Mich. Coal., 945 F.2d at 153 (internal citation omitted). “It is not enough that the chance of success on the merits be better than negligible.” Nken, 556 U.S. at 435, 129 S.Ct. 1749 (citation omitted). “[M]ore than a possibility of relief is required.” Id. While the Supreme Court has stayed a similar case from another Circuit, see G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — U.S.-, 136 S. Ct. 2442,195 L.Ed.2d 888 (2016) (Mem), that fact does not satisfy the test required of us here, and does nothing more than show a possibility of relief, which is not enough to grant a stay.

Furthermore, Doe’s personal circumstances—her young age, mental health history, and unique vulnerabilities—and her use of the girls’ restroom for over six weeks, which has greatly alleviated her distress, differentiate her case from Gloucester County. 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.

We are not convinced that Highland has made its required showing of a likelihood of success on appeal. Under settled law in this Circuit, gender nonconformity, as defined in Smith v. City of Salem, is an individual’s “failure] to act and/or identify with his or her gender....

Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.” 378 F.3d 566, 575 (6th Cir. 2004); see also Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir.2011) (“A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”); G.G. ex rel. Grimm v. Gloucester County. School Bd., 822 F.3d 709, 729 (4th Cir.2016) (Davis, J., concurring) (“[T]he weight of authority establishes that discrimination based on transgender status is already prohibited by the language of federal civil rights statutes, as interpreted by the Supreme Court.”).

Further, we are not convinced that Highland’s allegations of harm rise to the level of irreparable harm. See Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (“The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.”). Thus, Highland fails to meet its burden of proving the two “most critical” factors required of our balancing test.

However, the record establishes that Doe, a vulnerable eleven year old with special needs, will suffer irreparable harm if prohibited from using the girls’ restroom. Her special education class, which previously used the nurse’s restroom to accommodate Doe, has started using the sex-separate multi-user restrooms now that Doe can use the girls’ restrooms. Highland’s exclusion of Doe from the girls’ restrooms has already had substantial and immediate adverse effects on the daily life and well-being of an eleven-year-old child (i.e. multiple suicide attempts prior to entry of the injunction). These are not distant or speculative injuries—staying the injunction would disrupt the significant improvement in Doe’s health and well-being that has resulted from the injunction, 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.

Lastly, public interest weights strongly against a stay of the injunction. The district court issued the injunction to protect Doe’s constitutional and civil rights, a purpose that is always in the public interest. See, e.g., G&V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071,1079 (6th Cir. 1994); Cohen v. Brown Univ., 991 F.2d 888, 906 (1st Cir. 1993) (“[T]he overriding public interest l[ies] in the firm enforcement of Title IX.”). Thus, a stay is improper in this case.

The motion for leave to file the declaration of Steven O’Ban under seal, including the attached exhibits, is GRANTED in part. Only those documents filed under seal in the district court that are electronically inaccessible shall be maintained under seal in this court. Highland is DIRECTED to file a public version of O’Ban’s declaration redacting only those documents filed under seal in the district court within seven (7) days of the date of entry of this order. The motion for leave to file a sur-reply is GRANTED, and the clerk shall FILE Doe’s tendered sur-reply. The motion to stay is DENIED.

DISSENT