UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION

STEPHANIE LEIGH WHITAKER, 

et al.

 

 Plaintiffs,

v.

JUDGE JOSEPH W. KIRBY,

 

 Defendant.

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CIVIL COMPLAINT

Case No. 1:18-cv-00540-WOB

JUDGE WILLIAM O. BERTELSMAN

EXHIBIT IN SUPPORT OF PLAINTIFFS’ MOTION FOR LEAVE TO FILE SURREPLY

Exhibit A: Proposed Surreply

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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION

STEPHANIE LEIGH WHITAKER, 

et al.

 

 Plaintiffs,

v.

JUDGE JOSEPH W. KIRBY,

 

 Defendant.

)

)

)

)

)

)

)

)

)

)

CIVIL COMPLAINT

Case No. 1:18-cv-00540-WOB

JUDGE WILLIAM O. BERTELSMAN

[PROPOSED] SURREPLY TO DEFENDANT’S 

REPLY IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS

Defendant has failed to rebut Plaintiffs’ showing that their challenge to 

Defendant’s disparate treatment of transgender minors is proper.

Defendant cites for the first time in his reply a recent Sixth Circuit decision on 

abstention and standing, Brent v. Wayne Cty. Dep’t of Human Servs., No. 17-1428/1811, 

2018 U.S. App. LEXIS 23777 (6th Cir. Aug. 23, 2018), and argues for the first time that 

Plaintiff Shaul lacks standing. Neither of these arguments has merit. 

Importantly, Defendant also concedes for the first time that he treats transgender 

applicants differently, claiming that their cases are inherently more “sensitive” and 

“complex” than those of applicants who are not transgender. In effect, Defendant 

contends that he is permitted to treat transgender applicants differently because they 

are transgender and that the Plaintiffs therefore have no recourse in this Court. Rather 

than supporting dismissal of Plaintiffs’ claims, Defendant’s argument restates the very 

issue to be decided by this Court: whether federal law permits a state court to treat 

litigants differently based upon their transgender status. 

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I. ARGUMENT.

A. Brent v. Wayne County Confirms that Rooker-Feldman Does Not Apply to 

Plaintiff Whitaker’s Forward-Looking Claim and that Plaintiff Whitaker Has Standing.

Defendant misconstrues the Sixth Circuit’s recent opinion in Brent v. Wayne 

County Department of Human Services, which confirms the longstanding rule that the 

“Rooker-Feldman doctrine would not preclude” a claim for injunctive or forward-looking 

relief. No. 17-1428/1811, 2018 U.S. App. LEXIS 23777, at *24 (6th Cir. Aug. 23, 2018). 

Brent follows a line of Sixth Circuit authority distinguishing between “backward- and 

forward-looking claims,” and makes clear that “forward-looking” claims are expressly 

outside the scope of Rooker-Feldman. Berry v. Schmitt, 688 F.3d 290, 302 (6th Cir. 2012) 

(citing Fieger v. Ferry, 471 F.3d 637, 646 (6th Cir. 2006)). Specifically, “the Rooker-Feldman

doctrine does not bar a plaintiff from attempting to ‘clear away’ an allegedly 

unconstitutional state-law policy going forward.” Brent, 2018 U.S. App. LEXIS 23777, at 

*23. Here, Plaintiff Whitaker prays for an order “prohibiting further violations” of the 

Equal Protection clause and 42 U.S.C. § 1983. Doc. 1, PAGEID #: 21. This is exactly the 

type of “forward-looking” claim that falls outside the narrow scope of Rooker-Feldman.

Brent also supports Plaintiff Whitaker’s standing. In Brent, the panel found that 

the plaintiff lacked standing because he did not allege current or future harm “resulting 

from the state court's continued reliance on Judge Smith's policy.” Id. at *24-25. In 

contrast, Plaintiff Whitaker has expressly challenged Defendant’s refusal to permit 

her—unlike the parents of all other minors who are not transgender—to bring a new 

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name change petition on behalf of her child while the child is still a minor. Doc. 1, 

PAGEID #: 13, ¶ 27; PAGEID #: 51, 54–55, 59. 

B. Plaintiff Shaul Has Standing.

In his reply, Defendant argues for the first time that Plaintiff Shaul, who has a 

name change application on behalf of her transgender child pending before him, lacks 

standing. Defendant attacks only the existence of an injury in fact, not causation or 

redressability. But under settled law, Plaintiff Shaul need not wait to be further 

subjected to the discriminatory procedures at issue in this case in order to challenge 

them, as she has properly done here. 

Under settled law, “a plaintiff need not make costly futile gestures simply to 

establish standing.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 281 n. 14 (1978)); see 

also Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Mich. Gaming Control Bd., 

172 F.3d 397, 406 (6th Cir. 1999). “Although in equal protection cases the constitutional 

challenge often comes after a plaintiff has applied for a benefit and been rejected, there 

is nothing that mandates that a plaintiff wait until rejection to file suit.” Revelis v. 

Napolitano, 844 F. Supp. 2d 915, 922 (N.D. Ill. 2012) (citing Bakke, 438 U.S. at 281 n. 14). 

Here, to have standing Plaintiff Shaul need not go through the futile process of being 

further subjected to the disparate treatment and unusual procedures challenged in this 

case—which Defendant concedes that he applies to transgender minors based on his 

view that they are uniquely “sensitive” and “complex.” Plaintiff Shaul has alleged that 

she has an application pending before Judge Kirby to change her child’s name. Doc. 1, 

PAGEID #: 2, ¶ 4(c). Defendant continued the hearing on Shaul’s application 

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indefinitely on August 13, 2018 and expressly referenced Plaintiffs’ allegations in this 

action. Attached as Exhibit B is the Defendant’s court order continuing Shaul’s 

application. Like the plaintiffs in Revelis, she has alleged that Defendant’s 

discriminatory policies burden her right to have her child’s petition considered based 

on the same procedures and practices applied to the petitions of children who are not 

transgender. Doc. 1, PAGEID #: 15, ¶ 32; PAGEID #: 18, ¶ 36(b). 

In Revelis v. Napolitano, a man filed an immigration petition on behalf of his 

husband that, if granted, would have allowed his husband to apply for lawful 

permanent residency. 844 F. Supp. 2d 915, 918 (N.D. Ill. 2012). At the time, the Obama 

Administration’s policy made it “imminent” that a petition advanced by a same-sex 

couple would be denied—so while the application was still pending, the couple brought 

an Equal Protection challenge. Id. at 921, 924. The defendants claimed that the plaintiffs

lacked standing because no decision had yet been reached on the petition. Id. at 921. 

The court disagreed, instead concluding that “[w]hile [plaintiff] has no right to have his 

visa petition on [his husband’s] behalf granted, he does have a right to have the petition 

considered ‘without the burden of invidiously discriminatory disqualifications.’” Id. at 

922.

Similarly, here, Plaintiff Shaul has an application pending before Judge Kirby to 

change her child’s name. Doc. 1, PAGEID #: 2, ¶ 4(c). Like the plaintiffs in Revelis, she 

has alleged that discriminatory policies violate her right to have her child’s petition 

considered based on the same procedures and standards applied to petitions on behalf 

of minors who are not transgender. Doc. 1, PAGEID #: 15, ¶ 32; PAGEID #: 18, ¶ 36(b). 

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She does not need to take the futile step of waiting for the petition (which has been 

indefinitely continued by Defendant) to be further subjected to these discriminatory 

procedures before suing to vindicate her child’s right to equal treatment. Lac Vieux, 172 

F.3d at 406.

Nor is Plaintiff Shaul required to show that, but for Defendant’s discriminatory 

procedures, her petition would be granted. “When the government erects a barrier that 

makes it more difficult for members of one group to obtain a benefit than it is for 

members of another group, a member of the former group seeking to challenge the 

barrier need not allege that he would have obtained the benefit but for the barrier in 

order to establish standing.” Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City 

of Jacksonville, 508 U.S. 656, 666 (1993). In such cases, the injury in fact “is the denial of 

equal treatment resulting from the imposition of the barrier, not the ultimate inability to 

obtain the benefit.” Id.

C. Defendant May Not Treat Transgender Applicants Differently.

Defendant concedes for the first time that he treats name change petitions for 

transgender minors differently. He argues that “there is nothing improper about . . .

approaching the issues in transgender name change hearings differently than in other 

hearings” because “the underlying issues in a name change application for a 

transgender person will naturally be different from the issues for other name change 

applications, such as an adoption or divorce.” Doc. 30, PAGEID #: 245. Defendant

contends that cases involving transgender minors are categorically “sensitive cases” 

involving what he believes to be “more complex issues.” Doc. 30, PAGEID # PAGEID 

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#: 236. But he does not provide, nor could he, any basis in Ohio law for requiring the 

parents of a transgender minor to make a greater showing than that required of parents 

seeking to change their children’s name for other reasons. Instead, Defendant argues 

that he is permitted to treat transgender minor in these proceedings differently than 

other minors solely because they are transgender. That alone, in his view, is sufficient

to warrant a different approach, including detailed inquiries into the most sensitive and 

personal aspects of a child’s sexual, social, and medical history. 

That argument simply restates and amplifies the discriminatory conduct at issue 

in the case. Defendant’s argument concedes that he has intentionally singled out this 

class of petitioners and determined that, solely because they involve transgender 

minors, these petitions warrant a different and more demanding type of scrutiny than 

those involving minors who are not transgender. The disparate treatment of these 

uncontested cases—where both parents and the child agree on the name change—as 

categorically “sensitive” ones involving “complex issues” is discriminatory on its face. 

Moreover, while Defendant accepts that discrimination on the basis of transgender 

status must meet heightened scrutiny, he makes no attempt to show that his actions in 

treating these petitioners differently are substantially related to a sufficiently important 

or even legitimate governmental interest. For example, he does not contend that the 

government has an important or legitimate interest in overriding the decision-making 

of the parents in these cases, or in permitting individual judges to grant or deny name 

change petitions based upon whether a particular name is appropriate for a particular 

child’s gender as perceived by that individual judge. And even if he did seek to rely on 

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these asserted interests, none has any footing in Ohio’s name change law, which 

restricts courts to determining whether a proposed name change is for a fraudulent or 

similarly unreasonable purpose, R.C. 2717.01, or in any other Ohio public policy. 

Defendant’s bare assertion that he may treat transgender people differently is 

insufficient to meet his burden on a motion to dismiss.

Respectfully Submitted,

Dated: September 24, 2018

/s/ Joshua R Langdon

Joshua R. Langdon, Ohio Bar #90956 

Josh Langdon, LLC 

810 Sycamore Street, Fl. 2 

Cincinnati, Ohio 45202 

Phone: (513) 246-1400 

Fax: (513) 263-9000 

E-mail: josh@joshlangdon.com

Shannon Minter* 

Christopher Stoll* 

Asaf Orr* 

National Center for Lesbian Rights 

870 Market Street, Suite 370 

San Francisco, CA 94102 

Phone: (415) 392-6257

Fax: (415) 392-8442 

sminter@nclrights.org 

cstoll@nclrights.org 

aorr@nclrights.org

Attorneys for Plaintiffs 

* pro hac vice

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CERTIFICATE OF SERVICE

I, Joshua Langdon, Esq., do hereby certify that on this 24th day of September,

2018, I caused true and correct copies of the foregoing to be filed via the Court’s 

CM/ECF system, causing service on all counsel of record.

By: s/ Joshua R. Langdon

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