Trans­gen­der girl sues school

The stu­dent couldn’t use the girls’ re­stroom or dress as she chose, her fam­ily says.

Los Angeles Times - - FRONT PAGE - By Joy Res­movits

The case of 8-year-old Nikki Brar could change the way gen­der iden­tity is ad­dressed in the class­room.

Nicole Brar wants you to know her name, and that she de­serves bet­ter.

The trans­gen­der 8-yearold girl and her par­ents are su­ing her former Or­ange County pri­vate school for al­legedly pre­vent­ing her from ex­press­ing her gen­der iden­tity. She is choos­ing not to be a Jane Doe — as a young plain­tiff, she could re­main anony­mous — be­cause she feels strongly, ac­cord­ing to her lawyers, about “fight­ing on be­half of her right to an ed­u­ca­tion with­out dis­crim­i­na­tion.”

Her mother, Priya Shah, said the fam­ily thought long and hard be­fore fil­ing the law­suit. “It hon­ors our child’s com­mit­ment to be­ing who she is de­spite ad­ver­sity,” she said in an email. “It is our small con­tri­bu­tion to­ward en­sur­ing that other trans­gen­der and gen­der ex­pan­sive chil­dren do not go through the same hard­ship and trauma.”

The ar­gu­ment

The law­suit, filed last week in Or­ange County Su­pe­rior Court, al­leges that Her­itage Oak Pri­vate Ed­u­ca­tion in Yorba Linda would not let Nicole, who goes by Nikki, dress as she chose, use the bath­room of her choice and go by fe­male pro­nouns.

The com­plaint con­tends that the school vi­o­lated the Un­ruh Civil Rights Act, a Cal­i­for­nia law that out­laws a broad range of dis­crim­i­na­tion, in­clud­ing by sex or sex­ual ori­en­ta­tion, and that it fraud­u­lently ad­ver­tised it­self as nondis­crim­i­na­tory and fo­cused on the “whole child.”

“This is the first [trans­gen­der rights] case to use a state anti-dis­crim­i­na­tion law as one of the grounds for re­lief,” said Mark Rosen­baum, who di­rects the pro bono Pub­lic Coun­sel Op­por­tu­nity Un­der Law, which has taken on the law­suit along with sev­eral law school pro­fes­sors. “In light of the Trump ad­min­is­tra­tion’s in­ac­tion on tak­ing a stand against dis­crim­i­na­tion against trans in­di­vid­u­als … this is a ter­ri­bly im­por­tant case.”

Asaf Orr, an at­tor­ney for the Na­tional Cen­ter for Les­bian Rights’ trans­gen­der youth project, which is not in­volved in the case, said he be­lieves its ar­gu­ment is sound. “Hope­fully this will lead to a larger con­ver­sa­tion

about what schools need to do to serve trans­gen­der stu­dents,” he said. “They have to cre­ate a pri­vate school en­vi­ron­ment that’s safe and sup­port­ive for all stu­dents.”

Her­itage Oak re­sponds

The law­suit names Her­itage Oak and its ex­ec­u­tive direc­tor, Phyl­lis Cy­gan, as well as the school’s par­ent group, No­bel Learn­ing Com­mu­ni­ties, which is head­quar­tered in Penn­syl­va­nia, and its re­gional direc­tor, Kate Tay­lor.

Cy­gan did not re­spond di­rectly to re­quests for com­ment. But Kerry Owens, a vice pres­i­dent at an ad­ver­tis­ing firm called MGH, for­warded a state­ment say­ing that No­bel schools have met the needs of older trans­gen­der stu­dents.

Nicole’s case was dif­fer­ent, the state­ment sug­gests.

“We be­lieved it was ex­tremely im­por­tant to re­spond, not hastily, but with de­lib­er­ate care, to de­cide when and how to in­form and ed­u­cate our en­tire el­e­men­tary school com­mu­nity of stu­dents, staff and par­ents about the mid-year change of gen­der iden­tity ex­pres­sion of a young child,” the state­ment con­tin­ued. “Due to the sen­si­tiv­ity of the is­sue and age of the child, we be­lieved we needed ex­pert guid­ance re­gard­ing tim­ing (such as, pre­par­ing chil­dren for a change they would see in spring se­mes­ter of sec­ond grade and fall se­mes­ter of third grade), process and age-ap­pro­pri­ate com­mu­ni­ca­tion.”

The school had hired an out­side con­sul­tant and had been com­mu­ni­cat­ing with the fam­ily to dis­cuss ac­com­mo­da­tions, the state­ment said. “Un­for­tu­nately, these ac­com­mo­da­tions were re­jected and the par­ents with­drew their child.”

Rosen­baum, Nikki’s lawyer, re­jected the no­tion that the prob­lems came down to mis­com­mu­ni­ca­tion or speed of ac­tion. The school, he said, “cre­ated road­blocks and ul­ti­mately re­fused to meet the undis­puted needs of a young trans­gen­der stu­dent in their care.”

Be­com­ing Nikki

The 76-page com­plaint paints an in­ti­mate por­trait of Nikki’s home and school life.

Nikki was des­ig­nated male at birth and given a dif­fer­ent name. But as a young child, she grav­i­tated to­ward the color pink and rain­bow ponies. She walked in her mother’s heels and asked for nail pol­ish on her toes. She would wrap her­self in her grand­mother’s scarf, drap­ing it like a dress.

When she was 4, she told her par­ents that she wanted to be a girl. They told Nikki that gen­der was a spec­trum, like hot and cold wa­ter, that she could be any kind of boy she wanted to be.

But just be­fore she turned 7, in June 2016, Nikki said, “I want to be called a girl.” Her par­ents took her to a ther­a­pist fo­cused on gen­der.

Soon af­ter, they be­gan let­ting her wear girls’ clothes. Only then would she let her par­ents pho­to­graph her. She said she felt free and that boys’ clothes had “felt like a prison” to her.

Nikki’s par­ents de­cided to send her to Her­itage Oak in part be­cause it ad­ver­tised it­self as a nondis­crim­i­na­tory com­mu­nity that val­ued di­ver­sity and fo­cused on chil­dren’s in­di­vid­ual needs. “The school teaches third­grade cur­ricu­lum in the sec­ond grade, which we be­lieved would keep our child chal­lenged and en­gaged,” Shah said. “We en­vi­sioned our child grow­ing both in­tel­lec­tu­ally and so­cially.”

When the school year be­gan, Nikki was in the process of tran­si­tion­ing but still pre­sent­ing as a boy at school. “We were very care­ful not to rush to judg­ment,” Shah said. But be­fore she ar­rived at Her­itage Oak, her par­ents told the school’s ex­ec­u­tive direc­tor what was hap­pen­ing and asked that Nikki be treated as a girl if that’s what she ended up want­ing. Ac­cord­ing to the com­plaint, Cy­gan de­ferred a de­ci­sion.

By Novem­ber, the com­plaint said, Nikki had fully tran­si­tioned and her par­ents met with the school again to tell ad­min­is­tra­tors what had oc­curred. Again, they asked that the school ac­cept her choice: that it let her use her cho­sen pro­nouns, wear a girl’s uni­form and go to the girls’ bath­room — ei­ther that school year or the next one. Cy­gan al­legedly did not an­swer their de­mands, ex­cept to say that she would al­low Nikki to grow her hair.

In Jan­uary, the school in­sisted that Nikki wear the boy’s uni­form. The school said she would have ac­cess to a staff bath­room, but she couldn’t go to the bath­room used by her fe­male class­mates. Cy­gan de­clined their other de­mands, call­ing the school a “con­ser­va­tive in­sti­tu­tion” in which Nikki’s tran­si­tion would “cre­ate an im­bal­ance,” the com­plaint says.

Ac­cord­ing to the com­plaint, the school’s dis­re­gard of Nikki’s gen­der pref­er­ence em­pow­ered her peers — in­clud­ing Cy­gan’s son — to bully her and call her a loser.

As a re­sult, the com­plaint states, Nikki felt dis­tressed and iso­lated. Girls didn’t want to play with her be­cause was dressed as a boy, and she kept away from the boys and their rougher ac­tiv­i­ties. At re­cess she sat off by her­self, read­ing. “All the chil­dren at the school have a name they iden­tify with and a uni­form and bath­room that ac­cord with their gen­der iden­tity,” the com­plaint says. “Not so for Nikki.”

One day, Nikki heard a re­port about sui­cide on the ra­dio, ac­cord­ing to the law­suit. She asked her par­ents if she could “sui­cide her­self” be­cause “life is re­ally hard.”

A new start

Nikki left her school in Novem­ber, and her mother left a teach­ing job in or­der to home-school her.

Rosen­baum said Nikki is us­ing the law­suit not just to as­sert her rights but also to work through the feel­ings of be­ing dis­re­spected and sin­gled out.

The com­plaint seeks dam­ages for emo­tional dis­tress and dis­crim­i­na­tion as well as over $10,000 in school tu­ition and fees. It also asks the school to de­clare that it vi­o­lated the state nondis­crim­i­na­tion law and that it ad­ver­tised fraud­u­lently. It de­mands fur­ther that Her­itage Oak write a pol­icy of nondis­crim­i­na­tion to­ward trans­gen­der stu­dents, train staff ac­cord­ing to that pol­icy and in­cor­po­rate lessons about trans­gen­der iden­tity into its cur­ricu­lum.

This year, Nikki will get a new start in an Or­ange County pub­lic school.

Cour­tesy of the Shah-Brar fam­ily

NIKKI BRAR, sec­ond from left, with her par­ents, Priya Shah and Jaspret Brar, and her sis­ter. The fam­ily is su­ing Her­itage Oak pri­vate school and its direc­tor for pre­vent­ing Nikki from ex­press­ing her gen­der iden­tity.

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