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IN THE 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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Case No. 1:18-cv-540-WOB

MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE 

BRIEF AS AMICUS CURIAE BY THE TREVOR PROJECT AND IN 

OPPOSITION TO DEFENDANT’S MOTION TO STRIKE

The Trevor Project, through undersigned counsel, submits this brief in 

support of its motion for leave to file the amicus brief submitted for filing on 

Friday, September 14, 2018. (See Doc. 24.) 

After reviewing the local rules for the Southern District of Ohio and 

speaking with representatives from the clerk’s office, counsel for The Trevor 

Project were not aware of a specific procedure or custom requiring a motion 

for leave as a prerequisite to filing the amicus brief. Defendant has now 

moved to strike The Trevor Project’s amicus brief. (Doc. 25.) Neither 

counsel nor The Trevor Project means to inconvenience the Court or the 

parties, and counsel hereby seeks leave now.

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ARGUMENT

Consideration of an amicus brief rests in the sound discretion of the 

Court, and “is appropriate when a party has ‘an important interest and a 

valuable perspective on the issues presented.’” Bd. of Educ. of the Highland 

Local Sch. Dist. v. United States Dep’t of Educ., No. 2:16-cv-524, 2016 WL 

4269080, at *6 (S.D. Ohio Aug. 15, 2016) (quoting United States v. City of 

Columbus, No. 2:99-cv-1097, 2000 WL 1745293, at *1 (S.D. Ohio Nov. 20, 

2000)) (permitting amicus brief). The Trevor Project requests only to be 

heard as an amicus—not to intervene or participate in representing the 

parties—and Defendant cites no authority imposing a heightened relevance 

standard on such amicus filings.1 Indeed, courts in the Sixth Circuit 

generally consider whether the information offered by the amicus is “timely, 

useful, or otherwise necessary to the administration of justice.” Bd. of Educ. 

of the Highland Local Sch. Dist., 2016 WL 4269080, at *6 (quoting United 

States v. Michigan, 940 F.2d 143, 165 (6th Cir. 1991)).

 

1 Donovan, cited by Defendant, is neither controlling nor persuasive. It concerned the 

motion to intervene as amicus filed by a group that “currently represent[s] clients who 

have filed suits pursuant to the FLSA.” Donovan v. Gillmor, 535 F. Supp. 154, 159 (N.D. 

Ohio 1982). The court denied intervention, finding no special interest or inadequacy of 

counsel justified the group providing “supplementing assistance” to existing counsel. Id. 

Inasmuch as The Trevor Project requests only to be heard on social science data and 

counseling experiences that are uniquely within its expertise—and not to intervene—

Donovan is inapposite.

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The Trevor Project respectfully submits that it has an important 

interest, and that the proposed amicus brief presents a valuable perspective

on the issues presented in this case. Indeed, as detailed in the proposed 

amicus brief (Doc. 24), The Trevor Project is the nation’s largest lesbian, gay, 

bisexual, transgender, queer, and questioning (LGBTQ) youth crisis 

intervention and suicide prevention organization. It offers not only recent 

social science data related to the importance of recognizing transgender 

persons’ chosen names, but the firsthand perspectives of its counseling 

supervisors who field the calls, text messages, and other communications 

from LGBTQ youth in crisis—including, specifically, reports of distress 

concerning the denial of chosen names. 

None of the evidence cited in the amicus brief is unavailable to the 

Defendant or otherwise beyond the Court’s purview. The social science 

materials cited in the amicus brief are publically available via the 

publications and websites identified therein, and are of the type of 

“legislative facts” that have been presented in litigation for generations. See, 

e.g., Ellie Margolis, Beyond Brandeis: Exploring the Uses of Non-Legal 

Materials in Appellate Briefs, 34 U.S.F. L. Rev. 197, 198–99 & n.12 (2000)

(tracing the use of social science and other forms of studies to the “Brandeis 

brief” filed by future U.S. Supreme Court Justice Louis Brandeis in Muller v. 

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Oregon, 208 U.S. 412 (1908)). Further, the methodologies employed and 

the resulting data from these reports and articles speak for themselves. 

Defendant—who still has yet to file a reply brief in support of his motion to 

dismiss—has ample access to all of these materials and will not be prejudiced 

in his ability to respond to them if he so chooses. 

Similarly, the probate court decisions mentioned in passing in the 

amicus brief were filed as exhibits to Plaintiffs’ Complaint, and should come 

as no surprise. 

Defendant cites no rules or authority precluding The Trevor Project’s 

filing of this amicus brief. Nor does he provide a persuasive reason for 

discarding the publically available social science data that speaks to the very 

issue at the heart of this litigation: the ability of transgender teenagers to 

obtain legal name changes with the support of their parents. 

The Trevor Project undoubtedly has “an important interest and a 

valuable perspective on the issues presented.” Bd. of Educ. of the Highland 

Local Sch. Dist., 2016 WL 4269080, at *6. Accordingly, it respectfully 

requests to be heard as an amicus curiae.

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CONCLUSION

For these reasons, The Trevor Project respectfully MOVES for LEAVE 

to file the amicus brief already submitted (Doc. 24), and asks this Court to 

DENY Defendant’s motion to strike (Doc. 25). 

Respectfully submitted,

/s/ Brandon D. Cox

Brandon D. Cox (0089815)

 *Counsel of Record

Chad M. Eggspuehler (0094094)

Tucker Ellis LLP

950 Main Avenue 

Suite 1100

Cleveland, OH 44113

Tel: 216.592.5000

Fax: 216.592.5009

E-mail: Brandon.Cox@tuckerellis.com

Attorneys for The Trevor Project, 

Amicus Curiae

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CERTIFICATE OF SERVICE

I hereby certify that on September 18, 2018, a copy of the foregoing was 

filed electronically. Notice of this filing will be sent to all parties by operation 

of the Court’s electronic filing system. Parties may access this filing through 

the Court’s system. 

/s/ Brandon D. Cox

Brandon D. Cox

Attorney for The Trevor Project, 

Amicus Curiae

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