By Rosemary K. Otzman
A “Statement of Interest of the United States” was filed Feb. 24 in U.S. District Court in Detroit in a lawsuit brought by the mother of a 14-year-old transgender student who is suing four school districts, including Van Buren Public Schools, alleging bullying and sex discrimination.
Wyandotte Public Schools, one of those sued, filed a motion to dismiss these claims arguing, “…that a transgender plaintiff may establish a claim for sex discrimination only through evidence that the defendant engaged in sex stereotyping.”
After the Wyandotte motion, the U.S. Attorney General’s office entered the civil rights suit to support the child’s case and assist the court in evaluating the claims of sex discrimination. The filing included signatures of attorneys for the U.S. Department of Education, the Educational Opportunities Section of the Civils Rights Division of the U.S. Department of Justice, U.S. Attorney Barbara McQuade and Assistant U.S. Attorney Susan K. DeClercq.
District Court Judge Avern Cohn is hearing the case.
“This case is about changing the playing field for LGBT youth in schools,” the Plaintiff’s attorney James B. Rasor said to MyFOX TV in Detroit last week. “This is so that all kids can go to school and get an atmosphere free from bullying so that they can learn and maximize their potential.”
The Student at the center of the suit was born a girl but now identifies as a boy. The Student’s mother Kimberley Tooley, who lives in Dearborn Heights, has sued four public school districts: Van Buren, Wyandotte, and Dearborn Heights and their boards of education, and several individuals associated with the school districts, and the non-profit corporation that has Summit Academy North in Romulus and several individuals associated with that school.
Judge Cohn held a status conference with the parties on Feb. 23 and then on Feb. 24 signed an order stating what was discussed at the conference.
Judge Cohn stated the liability and damages in the case are bifurcated, split up, and he ordered the Plaintiff to file a letter within 10 days stating the particularities of the claims against each of the four school districts. And then, 10 days after that, the defendants shall lodge a letter to the court summarizing the basis
for their respective motion.
The U.S. document states: “Under Title IX and the Equal Protection Clause, discrimination based on a person’s nonconformity to sex stereotypes, a person’s gender identity, or a person’s transgender status constitutes discrimination based on sex … numerous courts that have addressed claims by transgender plaintiffs have recognized that sex-based discrimination may be established in all three of these ways. In this case, Plaintiff has alleged sufficient facts on each of these bases to survive Wyandotte’s Motion to Dismiss. Indeed, a person may establish sex discrimination through discriminatory conduct based on gender identity or transgender status, regardless of whether there is evidence of sex stereotyping.”
As to the charges against the Van Buren Public Schools, defendants named are: South Middle School Principal Karen Mida, Interim South Principal Robert Wilkinson, School Supt. Michael Van Tassel, and board members, individually, Brent Mikulski, Martha Toth, Sherry Frazier, Kevin English, Kathy Kovach, Scott Russell, and Kelly Owen.
The law suit is brought by Tooley on behalf of her child through James B. Rasor and Jonathan Marko of the Rasor Law Firm in Royal Oak.
The suit alleges that the Plaintiff is a 14-year-old boy, who was born as a girl, but has since transitioned.
“He has experienced overwhelming instances of harassment and discrimination because of his transition …” the suit begins. The Student began sixth grade at South Middle School on Sept. 6, 2011. About a week later the Student was passed a note by a girl classmate. The Student waited until the Student got home to open it and the letter said the Student was going to go to hell because of the way the Student dressed and there was a rainbow colored on it.
The suit said the next morning the mother called Vice Principal Mida, who she had known for years. The suit said the mother brought Mida the note and “she made light of it” saying the girl comes from a good family. Mida made a copy of the note and said it was for the Student’s file and kept the original note and said she would take care of it, “but she didn’t,” the suit said.
That same day, the suit said, the Student got off the bus and ran through the door upset. The Student had urinated because the Student was scolded for attempting to walk into the boys’ bathroom, so just didn’t go all day long.
Also that same day, the Student was given another note from the same little girl that said the Student was going to hell the day prior. Inside it, she asked to be forgiven for scaring the Student. When the mother went to see Mida the next morning, Mida told the mother that she figured that since the girl apologized on her own, that the situation was handled, the suit said.
The mother demanded to have a meeting with the child’s parents, but Mida said it wasn’t possible, but she would talk to the little girl’s mother. According to the suit, Mida said the girl’s mother said she would never do that and Tooley thought the girl should be disciplined and found Mida’s handling of the situation not acceptable.
The suit spells out problems in gym class where the Student changed inside the bathroom stall so the Student wouldn’t have to change with the girls. The Student started to throw up daily after gym at that point because of the severe harassment, the suit said.
Between Sept. 6 and Oct. 17, 2011, the Student was called fag, queer, and he/she at school and the mother went to the office almost daily, the suit said.
The suit said four female students told the Student that “they kill dykes like him.” When the Student turned and ran to a locker, the girls said, “You better be afraid, bitch,” and laughed, the suit said.
Although the mother wanted the Student to pick out the girls from the yearbook for Mida, that never happened. Although Mida had said she would walk the Student to classes, she only walked the student to the first class and not the rest, the suit alleges.
When Tooley went to see Mida about that, the suit quotes Mida as saying, “When you get older you’ll forget all about the kids that didn’t like that you were a tomboy and you will develop into a beautiful woman and…” Then the Student stood up and said, “I am a boy” before the mother had the chance to. Tooley reminded Mida that those four girls threatened to kill her son. Mida, allegedly replied, “It was their word against hers,” and she refused to protect the Plaintiff, the suit said.
Mida was unavailable from that point on and so the mother demanded to see interim principal Wilkinson. The suit said at every appointment he would say such things as, “If she is going to dress like a boy she needs to toughen up.”
About Nov. 1, 2011, Wilkinson threatened the Student’s mother with truancy charges, according to the suit. The student had never returned to school after Oct. 17, 2011 because Mida failed to discipline the girl who wrote the note and the four girls who threatened him, the suit said. The administration at South Middle School said the Student needed to make changes by dressing more feminine and that the Student wasn’t allowed to use the boys’ restroom.
The mother said she made an appointment to see Supt. Van Tassel on three separate occasions and left him several voice mails. She even walked in two times demanding to see him. She explained that her child had been out of school for a very long time and that she needed help so that her child could get back in school, but she never received a reply, the suit states.
In January 2012, the mother decided to look into different school options because of the harassment and she chose Summit Academy in Romulus, the suit said. After testing, he was put back a year.
Problems persisted there with the staff refusing to call the Student by a boy’s name.
The suit states after leaving South Middle School, the Student started to experience psychosomatic pain condition and within a few months the Student was in a wheelchair. There were problems at Summit, as well.
On or about Dec. 4, 2012, the Student started sixth grade at Wilson Middle School in Wyandotte. After some opposition, the school allowed staff to use male pronouns for the Student, but still made the Student use the staff ladies’ room across from the cafeteria. The Student was warned never to try to use the boys’ bathroom upstairs. It was a trough urinal and no doors. The Student was told if boys caught him sneaking, they would see and the Student would probably get hurt.
Problems persisted, according to the suit, and staff members called the Student by the legal female name. The suit alleges staff members outed the Student to the student’s friends.
In July 2015 a boy threatened the Student and the Student ran off so fast the Student fell and fractured an elbow and hit the Student’s ear and face. That boy was eventually prosecuted, the suit said.
In September 2013, the Student started classes at OW Best Middle School in Dearborn Heights, where the Student got a girlfriend and then was outed to the girl’s parents by the staff. The Student experienced kidney infections due to not being allowed to use the boys’ bathroom and was in Children’s Hospital about April 1, 2014, the suit said.
The law suit was filed Sept. 5, 2014. It alleges violation of his constitutional rights, sex/gender discrimination under Title IX, sex-based harassment, violation of Michigan Elliott Larsen Civil Rights Act, violation of 14th Amendment, First Amendment, violation of Equal Protection Rights under the Michigan Constitution, Gross Negligence, suffered injuries as a result of execution of the districts’ policies and customs, and violation of Civil Rights.
“Students in the districts’ school … have been harassed by their peers with derogatory language, threats, and physical assaults because of their nonconformity to gender stereotypes and/or sexually harassed by their peers,” the suit alleges.
“Sex-based harassment in the districts is severe, pervasive, or persistent, and has denied or limited students’ abilities to participate in or benefit from the district’s educational program.
“In some instances, the district should have known of the harassment but failed to investigate, address, and/or stop the harassment. In most instances involving Plaintiff, Plaintiff himself and his mother have reported sex-based harassment to school and district officials. District officials clearly knew of the harassment but the district either took no action or its response was inadequate. The harassment continued and in many instances escalated.
“A hostile environment exists in the districts and the districts’ existing policies and procedures have contributed to the hostile environment,” the law suit states.
“Unless enjoined by this court, the district will continue to violate the Plaintiff’s state, federal, and Constitutional rights. Plaintiff requests injunctive relief from allowing the districts from continuing their discriminatory policies and procedures.”
Editor’s Note: Although the law suit uses the transgender child’s names – both the feminine and masculine versions – the Independent has decided to call the child “Student.”