SCRANTON – A Pennsylvania federal judge last year denied Minersville Area School District’s motion to dismiss a lawsuit filed by an 8-year-old who was assigned the gender of male at birth but now identifies as female - and the sides are now arguing over the plaintiff's attorneys' communication with the child's psychologist.

The unnamed plaintiff was allegedly not allowed to use the girl’s bathroom at school, resulting in a lawsuit filed in March 2017 in U.S. District Court for the Middle District of Pennsylvania. Tracey Handling is identified as the child's mother in court filings.

Plaintiff's attorney Jason D. Schiffer | Lehigh University

On Nov. 22, 2017, Judge Robert Mariani ruled that the case could go forward.

“The dispute centers on allegations that defendant had a policy dictating that children must use the bathroom corresponding to the sex listed on the student’s birth certificate, and plaintiff, who uses a female name, dresses in clothing traditionally associated with females and presents herself to the world as a female – was assigned the sex of male at birth,” Mariani wrote.

"Defendant does not advance any important objective that its bathroom policy served. Instead, Defendant reiterates its argument that, in the absence of guidance from the government, Defendant made all reasonable efforts to accommodate Plaintiff.

"Plaintiff has adequately alleged the existence of a school policy that treated her differently on the basis of her transgender status of nonconformity to gender stereotypes."

The plaintiff alleges in her lawsuit filed that the school district’s policy on bathroom use has violated her rights under both Title IX of the Education Amendments of 1972 and the 14th Amendment.

According to the opinion, the student was able to use a “single-use” bathroom when she was in kindergarten, then used a unisex bathroom when no single-use facility was available.

However, the order said the student was forced to wait for all of the boys in the class to use the bathroom and a teacher to clear out the boys’ bathroom while on a field trip, prompting questions from the girl’s classmates that upset the student.

In a June 27, 2017, objection to the school district’s motion to dismiss the lawsuit, the plaintiff said “MASD makes no attempt to justify or even respond to A.H.'s claims related to MASD refusing to allow her to use the girl’s restroom.”

The court said in its order that when the government provided guidance on the issue, the school district changed its stance.

“On May 27, 2016, soon after the Department of Justice and the Department of Education issued a guidance document on how schools should accommodate transgender students with respect to bathrooms, plaintiff’s mother was told (by the school superintendent) that plaintiff would not be allowed to use the girl’s bathroom,” the opinion said.

Although the student was allowed to use the girl’s bathroom at the end of the 2015-2016 school year, the court said “the school, however, has not created any policy on bathroom access for transgender students.”

In support of its motion to dismiss the claims, the school district said in a June 13, 2017, court filing that “DOE and DOJ issued new guidance on Feb. 22, 2017, unequivocally withdrawing the 2015 and 2016 guidance documents, by stating: ‘In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved.’”

The court said in its opinion that the school district’s argument that “in the absence of guidance from the government, defendant made all reasonable efforts to accommodate plaintiff” falls short of proving the claims should be dismissed.

Most recently in the case, attorneys for MASD wrote Mariani its concerns about how Dr. Monika Parikh, a psychologist, is being presented.

Parikh has been treating the plaintiff since November 2014, and MASD issued a subpoena asking for the file relating to that treatment.

MASD now says it needs to depose Parikh and has asked for supplemental discovery responses (communication between Parikh and the plaintiff's attorneys), but the plaintiff's attorneys are now calling Parikh a potential expert witness.

"We believe at this point that Plaintiff's counsel is engaging in a course of conduct to essentially hide a witness by identifying an otherwise fact witness as an expert witness," attorneys wrote.

"It is our position that these communications are not attorney-work product..."

Plaintiff's attorneys say they had asked Parikh for an opinion on a specific question, and that request and the response were protected by attorney-work product and would reveal trial strategy and mental processes.

"Our position on Dr. Parikh’s response was that the answer would perforce reveal the question, and also that for the purposes of the question, we were soliciting an opinion for use at trial, and we were not obligated to disclose her response unless Plaintiff was going to elicit that opinion at trial," they wrote. 

"As we had not yet made that decision, we considered the information not subject to disclosure at this time."

The plaintiff is represented by Jason D. Schiffer of Cohen, Feeley, Altemose & Rambo in Bethlehem. The defendant is represented by Christopher J. Conrad of Marshall, Dennehey, Warner, Coleman and Goggin in Camp Hill.

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