US — Nashville, Tennessee. The parents of a male student whose three-part demand that a school treat their son “as the girl that she is,” refer to him with “she/her pronouns” and allow him “access to the girls’ restroom” was denied are now taking their grievances through legal channels with the aide of the Human Rights Campaign and Linklaters, a law firm.

The parents, who filed a Motion to Proceed Pseudonymously in the United States District Court for the Middle District of Tennessee, are identified in court papers only as A.H., the mother, and E.H., the father.

The Law

The parents are challenging HB 1233, also known as the “Tennessee Accommodations for All Children Act.”

HB 1233 requires public schools to provide a “reasonable accommodation” for a person “unwilling or unable to use a multi-occupancy restroom or changing facility designated for the person’s sex” or “multi-occupancy sleeping quarters” designated for the person’s sex while attending a public school-sponsored activity.

Under the law, a student, teacher, or employee has a “private right of action” against a public school if the person “encounters a member of the opposite sex in a multi-occupancy restroom or changing facility” on school property who was intentionally given access by the school. Those who bring a successful civil action against a school may be able to recover monetary damages, including lawyer’s fees.

Parents & Child

The child’s parents say their eight-year-old male child “knows herself to be female.”

His mother insists this became evident in August 2019 on the first day of kindergarten when the child, identified only as D.H., asked her to cut his hair so that he “would look more like a boy.” A.H. claims she gave her son a haircut and then watched “D.H.’s face fall in sadness when D.H. saw [the] haircut in the mirror for the first time.”

Two months into the following school year, D.H.’s parents began to “socially transition” him. The six-year-old declared “she/her pronouns” at elementary school. D.H.’s parents allege that teachers and students at the elementary school regularly “misgendered” the child. (To misgender is to refer to a person who identifies as transgender by his or her sex, rather than self-declared gender identity.) Students got “hostile and argumentative when [D.H.] attempted to share her gender identity with them.”

D.H. was diagnosed with adjustment disorder, which court filings explain as a psychiatric condition that “can result in significant impairment in social, occupational, and other areas of functioning with symptoms like depression, anxiety, and even suicidal thoughts or behavior.” D.H.’s “alarming symptoms” were “reflux” as well as “migraines and nightmares.” A psychologist told the parents that the adjustment disorder was caused by D.H.’s “inability to live her life fully as a girl in all respects,” and “aggravated in particular” by his “inability to use the girls’ restroom at school.”

D.H.’s in-person learning was interrupted by the COVID-19 pandemic and a period of online schooling. When he returned to in-person schooling in second grade, Tennessee had just passed HB 1233. School officials offered the child the choice between four single-occupancy restrooms. D.H.’s parents objected, claiming this “isolated” and “distinguished” D.H. from  his classmates, and was thus “discriminatory to D.H. and reinforced the differential treatment and trauma associated with living under the School Facilities Law.”

A.H. and E.H. showed elementary school administrators a “slideshow” designed to teach them how to “validate [D.H’s] feelings, identity, [and] experiences” and pass this information on to staff and students. The parents insisted that the principal start the validation by changing the sex marker on D.H’s records from male to female. The parents also invited school administrators and teachers to attend meetings at PFLAG, a queer organization, and offered to have GLSEN, a queer organization, provide “‘trans 101’ training to school staff.” The school denied these demands.

The child’s behavior escalated to “explosive screaming fits and throw[ing] objects” between periods of apathy and lethargy, court filings show.

Court papers allege that D.H. became the subject of “bullying and harassment” from fellow students, such as being “questioned … about her gender” by a student three times within a three-week period while on the playground, which the parents reported to the Principal. When he attended the elementary school’s Daddy-Daughter Dance, he was asked whether he was “really a girl” and was informed that he was a “boy in a girl’s dress,” court papers claim. He was also allegedly subjected to “physical assault” at a bus stop by a child who repeatedly yelled, “This kid is gay!”

The Lawsuit

The lawsuit claims that Tennessee’s “School Facilities Law” violates his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

In addition to monetary damages, A.H. and E.H. are asking the court to stop school officials from enforcing the law; order the school to allow their son to use the multi-occupancy restrooms, changing rooms and sleeping quarters with girls; mandate that other Tennesseans be allowed to access the sex-specific facilities of their preference while in public schools; and order the school to change their son’s sex marker on his school records from male to female.