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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.

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CIVIL COMPLAINT

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

JUDGE WILLIAM O. BERTELSMAN

MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

Defendant’s motion to dismiss should be denied. The Rooker-Feldman doctrine

does not apply to this case because Plaintiffs challenge Judge Kirby’s practices and 

procedures, not his final judgments. Catz v. Chalker, 142 F.3d 279, 294 (6th Cir. 1998)

(Rooker-Feldman not bar claims challenging the “procedures used” by state court judges

(emphasis in original)). Similarly, the Supreme Court limited application of Younger

abstention almost exclusively to criminal and quasi-criminal proceedings in Sprint 

Communs., Inc. v. Jacobs, 571 U.S. 69 (2013), and Defendant’s reliance on pre-Sprint case 

law is misplaced.

Defendant does not (and cannot) dispute that Plaintiffs Whitaker and Shaul have 

Article III standing—and Defendant has overlooked the Sixth Circuit’s admonition in 

Sch. Dist. v. Sec’y of the United States Dep’t of Educ., that where one Plaintiff has standing, 

“there is no need to consider” whether any others do. 584 F.3d 253, 261 (6th Cir. 2009). 

In any event, Plaintiff Jane Doe does have standing, as she has alleged that she intends 

to file a name change application for her child, and her child therefore will be subject to 

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the discriminatory practices at issue. Additionally, Congress has abrogated judicial 

immunity for state court judges in actions for declaratory relief (rather than monetary 

damages), so the Court should not dismiss on that ground, either.

Lastly, Defendant—in what amounts to a motion to dismiss for failure to state a 

claim—contends that he does not discriminate against transgender people because he 

has granted name changes to transgender adults and select transgender minors in the 

past, before adopting the new, discriminatory procedures alleged in Plaintiffs’ 

complaint. But in order to state a claim for unlawful discrimination, a plaintiff need 

not allege or prove that the defendant discriminated against all members of a protected 

class. See Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 720 (6th Cir. 2006). Just 

as it would violate equal protection for Defendant’s procedures to treat girls under 18 

less favorably than boys under 18 based on their sex—regardless of whether Defendant 

also discriminated against adult women or had treated a single girl equally in the 

past—so too it violates equal protection to treat transgender minors less favorably than 

other minors based on their transgender status. Further, both the Sixth Circuit and this 

Court have held that discrimination against transgender people is subject to heightened 

scrutiny, and Defendant has not even attempted to show that the challenged procedures 

satisfy that demanding standard. For these reasons, Defendant’s motion to dismiss 

should be denied.

I. ARGUMENT.

A. Rooker-Feldman Does Not Bar Plaintiffs’ Claims.

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Defendant complains that the present suit is an “end-run” around the state court 

system, and thus Rooker-Feldman should apply. Doc. 15, PAGEID #: 103. This misses 

the mark and “does not make Rooker-Feldman more or less applicable.”. Coles v. 

Granville, 448 F.3d 853,859 (6th Cir. 2006). Under settled law, the dispositive issue is 

whether the Complaint falls within the narrow confines of the Rooker-Feldman doctrine. 

As shown below, it does not.

The Rooker-Feldman doctrine is based on Congress vesting the United States 

Supreme Court with jurisdiction to review a final judgment of a state’s highest courts,

which by implication divests the lower federal courts of that jurisdiction. Exxon Mobil 

Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283–84 (2005). In the wake of Exxon, the 

Sixth Circuit “has tightened the scope of Rooker-Feldman.” Kovacic v. Cuyahoga Cty. Dep’t 

of Children & Family Servs., 606 F.3d 301, 309 (6th Cir. 2010); Coles, 448 F.3d at 857 (6th 

Cir. 2006). “In post-Exxon analysis,” the Sixth Circuit has “distinguished between 

plaintiffs who bring an impermissible attack on a state court judgment—situations in 

which Rooker-Feldman applies—and plaintiffs who assert independent claims before the 

district court—situations in which Rooker-Feldman does not apply.” Id. at 309.

Defendant’s reliance on three pre-Exxon unpublished Sixth Circuit decisions is 

misplaced. Doc. 15, PageID #: 105. The Sixth Circuit has subsequently repudiated its 

prior standard that turned on whether a federal suit is “inextricably intertwined” with

or somehow “tied” to the state court proceeding, or whether success on the federal 

claims would imply the invalidity of the state-court ruling. Berry v. Schmitt, 688 F.3d 

290, 302 (6th Cir. 2012) (“In the wake of Exxon, this court has explicitly backed away 

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from that standard.”). Under current law, as explained in Exxon, “[i]f a federal plaintiff 

present[s] some independent claim, albeit one that denies a legal conclusion that a state court 

has reached in a case to which he was a party . . ., then there is jurisdiction and state law 

determines whether the defendant prevails under principles of preclusion.” Fieger v. 

Ferry, 471 F.3d 637, 642 (6th Cir. 2006) (citing Exxon, 544 U.S. at 293) (emphasis added). 

This case presents such an independent claim.

1. This Action Challenges the Procedures Used by the Probate Court Judge,

Not the Substance of the State Court Judgment.

The Sixth Circuit has long recognized that while Rooker-Feldman prohibits federal 

review of state court judgments, it does not bar claims challenging the “procedures used” 

by state court judges. Catz v. Chalker, 142 F.3d 279, 294 (6th Cir. 1998) (emphasis in 

original); see also Alexander v. Rosen, 804 F.3d 1203, 1206–07 (6th Cir. 2015) (RookerFeldman did not apply because plaintiff’s injury did not “emerge from the state court 

judgment” but rather “the conduct of the individuals who happened to participate in 

that decision”) (emphasis in original); Marks v. Tennessee, 554 F.3d 619, 623 (6th Cir. 

2009) (plaintiff’s claim that state court’s refusal to indefinitely stay proceedings violated 

the Americans with Disabilities Act was not barred by Rooker-Feldman).

In Catz, the Sixth Circuit reversed a trial court holding that the plaintiff’s claims 

were barred by Rooker-Feldman because they appeared to challenge the validity of the 

Arizona state court proceedings. Catz, 142 F.3d at 294 (6th Cir. 1998). The Sixth Circuit 

explained that the plaintiff “attack[ed] as unconstitutional ‘the manner in which the 

Arizona state court proceeding was conducted,’” not the Arizona state court’s decision 

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on the merits. Id. (internal quotation marks omitted). The Sixth Circuit also recognized 

that the relief sought “would not consist of a conflicting judgment on the merits.” Id.

Just as in Catz, the Complaint in this case attacks the procedures used in Judge 

Kirby’s courtroom, which single out transgender minors and subject them to disparate 

treatment:

• “Judge Kirby has instructed that all name change applications from 

transgender persons be assigned to his docket for a hearing,” rather 

than being heard by a magistrate judge (as is the case for all other 

applicants). Doc. 1, PAGEID #: 17, ¶ 35(a).

• Judge Kirby engages in intrusive, embarrassing, atypical, and 

irrelevant questioning of transgender minors and their parents during 

name change hearings. Doc. 1, PAGEID #: 12–13, ¶¶ 26(e) & 26(f), and 

PAGEID #: 18, ¶ 36.

• Judge Kirby requests evidence from medical professionals in cases 

involving transgender minors when he does not require such evidence 

from non-transgender minors. Doc. 1, PAGEID #: 18, ¶ 36(a).

• Judge Kirby copies and pastes his decisions regarding transgender 

minors, rather than engaging in individualized determinations. Doc. 

1, PAGEID #: 15, ¶ 33; PAGEID #: 18, ¶ 36(b); PAGEID #: 51, 54–55, 59 

(three decisions from Judge Kirby using identical language and 

format).

• Transgender minors, upon having their applications for name changes 

denied, are prohibited from bringing further applications until they are 

adults (unlike other applicants). Doc. 1, PAGEID #: 13, ¶ 27; PAGEID 

#: 51, 54–55, 59.

Whitaker alleges that, because of her child’s transgender identity, her child’s case 

was heard by Defendant rather than (as would normally be the case) by a magistrate,

her child was subjected to a barrage of intrusive and embarrassing questions, she was 

denied the opportunity to be heard by an impartial decisionmaker who would listen to 

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the evidence and render an individualized determination, and she was barred from 

bringing further name change applications for her child, just as the plaintiff in Catz was 

prohibited from filing further suits. Thus, under Catz, Alexander, and Marks, Whitaker’s 

challenges to the practices and procedures used by Judge Kirby are not subject to 

Rooker-Feldman.

B. The Younger Abstention Doctrine Does Not Bar Plaintiffs’ Claims.

This case does not fall within the narrow category of state law proceedings to 

which the Younger abstention doctrine applies. New Orleans Pub. Serv., Inc. v. Council of 

New Orleans (NOPSI), 491 U.S. 350 (1989). The Supreme Court has cautioned that “only 

exceptional circumstances justify a federal court’s refusal to decide a case in deference 

to the States.” NOPSI, 491 U.S. at 368. In Sprint Communications, Inc. v. Jacobs, the Court 

clarified that those “exceptional circumstances” exist in only “three types of 

proceedings”:

ongoing state criminal prosecutions; certain “civil enforcement 

proceedings”; and pending “civil proceedings involving certain orders . . . 

uniquely in furtherance of the state courts’ ability to perform their judicial 

functions.” 

571 U.S. at 78 (ellipses in original).

This case does not fall within any of these three “exceptional” categories; 

accordingly, the Younger abstention doctrine does not apply. 

Defendant’s Younger abstention analysis disregards this binding precedent and 

relies instead on the three factors in Middlesex County Ethics Committee v. Garden State 

Bar Ass’n, namely whether, “(1) the state proceedings [were] currently pending; (2) the 

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proceedings involve[d] an important state interest; and (3) the state proceedings 

w[ould] provide the federal plaintiff with an adequate opportunity to raise his 

constitutional claims.” 457 U.S. 423 (1982). As the Supreme Court noted in Sprint, 

“[d]ivorced from their quasi-criminal context, the three Middlesex conditions would 

extend Younger to virtually all parallel state and federal proceedings, at least where a 

party could identify a plausibly important state interest.” 571 U.S. at 81. That result is 

“irreconcilable with our dominant instruction that, even in the presence of parallel state 

proceedings, abstention from the exercise of federal jurisdiction is the ‘exception, not 

the rule.’” Id. at 82 (emphasis in original) (citing Hawaii Housing Authority v. Midkiff, 467 

U.S. 229, 236 (1984)). For this reason, the Sixth Circuit has held that the “Middlesex

factors are only considered by a court after the court decides that one of the NOPSI

exceptional circumstances is present.” Doe v. Univ. of Ky., 860 F.3d 365, 369 (6th Cir. 

2017) (citing Sprint, 134 S. Ct. at 593–94); see also FCA US, LLC v. Spitzer Autoworld Akron, 

LLC, 887 F.3d 278, 290 (6th Cir. 2018). Because this case does not fall within any of these 

“exceptional circumstances,” the Middlesex factors do not apply; moreover, even if they 

did, they would not be satisfied here

1. A Civil Name-Change Proceeding Is Not Quasi-Criminal or Uniquely 

Important to State Courts’ Ability to Perform Their Judicial Functions.

This case does not fall within any of the three “exceptional” categories that 

trigger the Younger abstention doctrine. NOPSI, 491 U.S. at 368. 

First, a civil name change proceeding is not criminal in nature. Second, a civil 

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criminal in nature to trigger Younger abstention. Sprint, 571 U.S. at 81; Doe, 860 F.3d at 

369. Unlike proceedings akin to a criminal prosecution, civil name change proceedings

must be initiated by the person seeking the name change, or on his or her behalf, and

are not in any way intended to sanction the individual seeking a name change. See Doe, 

860 F.3d at 369 (quoting Sprint, 571 U.S. at 79). They cannot, therefore, constitute quasicriminal civil enforcement actions precluded by Younger.

Finally, name change actions do not constitute “proceedings involving certain 

orders that are uniquely in furtherance of the state courts’ ability to perform their 

judicial functions.” NOPSI, 491 U.S. at 368. The Supreme Court has held that these 

“certain orders” include civil contempt orders and the requirement for posting bond 

pending appeal. Id. The common thread between these examples is that both implicate 

the ability of state courts to enforce their orders and judgments. The proceedings at 

issue in this case do not share these attributes. Unlike a contempt order or the 

requirement to post bond, scrutiny of the discriminatory procedures applied to 

transgender minors petitioning for name changes, and the potential for forward-looking 

relief to correct constitutional deficiencies in those procedures in future cases, does not 

interfere with the ability of state courts to enforce their judgments in any way.

2. The Middlesex Factors are Not Satisfied.

Even if civil name change proceedings did fall into one of the three NOPSI

categories (which they do not), Younger abstention would not be justified because the 

three Middlesex factors also are not satisfied. For Plaintiff Doe, not even the first 

requirement is satisfied, because there is no pending state court proceeding that could 

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warrant abstention. As to the other two Plaintiffs, the second and third Middlesex 

factors remain unsatisfied.

This case also does not involve the type of “important state interest” 

contemplated by Middlesex. For example the Sixth Circuit has found an important state 

interest in “providing for the general safety, health and welfare of its citizens.” Sun 

Refining & Marketing Co. v. Brennan, 921 F.2d 635, 641 (6th Cir. 1990). Here, the name 

change procedure exists primarily to facilitate individual and parental autonomy; the 

state’s only significant interest is protecting the public against fraud or name changes 

sought for a similarly unreasonable or improper purpose. See RC 2017.01(B)-(C). Those 

interests are not implicated here, where Plaintiffs are seeking equal treatment of name 

change applications for their own minor children with full parental consent.

Lastly, Plaintiffs have no adequate means of asserting their constitutional claims 

within the Ohio state court proceedings. This action challenges Defendant’s practices 

and procedures about name change applications for transgender minors—a claim that 

necessarily implicates Defendant’s treatment of transgender applicants generally, not 

only in a single case. By contrast, Plaintiff Whitaker’s appeal to the Twelfth District 

Court of Appeals will be limited to the record in the trial court and will focus on legal 

and factual errors committed by Judge Kirby with respect to her child’s particular case. 

There will be no opportunity in that court for Plaintiff Whitaker to obtain and present 

evidence of Defendant’s practice of discriminating against transgender minors across a 

range of cases. Unlike the state court appeal, this suit does not attack the ultimate 

conclusions Judge Kirby reached (i.e. substance), but rather the constitutionality of the 

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procedures he utilizes. Plaintiffs will have the opportunity to prove those general 

practices only in this suit. Therefore, even if the Middlesex factors were to apply to this 

case (which they do not), those factors would weigh against Younger abstention.

C. Article III’s “Case or Controversy” Requirement is Satisfied.

The jurisdiction of the federal courts is limited by Article III § 2 of the United 

States Constitution to complaints alleging a live “case or controversy.” To meet that test 

and establish standing, a plaintiff must allege an injury in fact, which the Supreme 

Court has defined as “an invasion of a legally protected interest which is (a) concrete 

and particularized, and (b) actual or imminent, not conjectural or hypothetical,” Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotations omitted). 

A plaintiff must further allege a causal connection between the injury and the 

defendant’s conduct and that a favorable decision will redress the injury. Id. at 560–61. 

Defendant concedes that Plaintiffs Whitaker and Shane have standing, but argues that 

Plaintiff Jane Doe lacks standing. He is incorrect. Under well-established principles, 

Plaintiff Doe has standing. 

1. Plaintiff Jane Doe Has Standing Because She Has Concrete Plans to File a 

Name-Change Application for Her Minor Child.

Plaintiff Jane Doe has standing under the traditional three-element Lujan test. 

First, Plaintiffs have alleged that Jane Doe “is planning to file a petition in Warren 

County Probate-Juvenile Court for a name change” and that, when she does so, she and 

her child will be subject to the unconstitutional practices and procedures challenged in 

this action. Doc. 1, PAGEID #: 3, at ¶ 5(c). Plaintiff’s Doe’s allegation of a concrete 

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plan to take action that will subject her to Defendant’s unlawful conduct is precisely

what is required to establish imminent injury sufficient to support standing. See, e.g., 

Platt v. Bd. of Comm'rs on Grievances & Discipline of Ohio Supreme Court, 769 F.3d 447, 452 

(6th Cir. 2014); Green Party of Tennessee v. Hargett, 791 F.3d 684, 696 (6th Cir. 2015); 

Planned Parenthood Sw. Ohio Region v. DeWine, 64 F. Supp. 3d 1060, 1065 (S.D. Ohio 

2014). 

In addition, as stated in the Complaint, one of the purposes for seeking a name 

change for John Doe is to allow him to apply to colleges this fall using his correct name 

instead of his birth name. Doc. 1, PAGEID #: 15, at ¶ 30(c). This demonstrates that John 

Doe will experience a concrete and particularized harm if Defendant’s discriminatory 

conduct is permitted to continue. Those allegations—which must be liberally construed 

and accepted as true at this stage, see Lujan, 504 U.S. at 561—are more than sufficient to 

allege an injury in fact.

Second, Defendant does not seriously contest that Jane Doe’s injury is fairly 

traceable to the disparate procedures employed by Defendant when hearing namechange applications on behalf of transgender minors. By alleging a pattern or practice 

of discrimination by Defendant threatening her with imminent injury, Plaintiff Doe has 

adequately alleged that her injury is traceable to Defendant’s conduct.

Third, Defendant concedes that Plaintiff Doe’s injury is redressable by an order of 

this Court, although Defendant (incorrectly) assumes that Plaintiffs desire an order 

specifically directing Judge Kirby to grant John Doe’s name change. In fact, Plaintiffs 

seek nothing more than an order that will ensure Judge Kirby treats transgender name 

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change applicants no differently than other similarly-situated applicants. Such an order 

would prevent Plaintiff Jane Doe’s subjection to the unconstitutional procedures that 

are the subject of this action.

2. The Court Need Not Reach the Issue of Plaintiff Jane Doe’s Standing.

In any event, it is well established that the Court need not reach the question of 

Plaintiff Jane Doe’s standing so long as at least one other Plaintiff shows standing. Sch. 

Dist. v. Sec’y of the United States Dep’t of Educ., 584 F.3d 253, 261 (6th Cir. 2009) (“Since at 

least one Plaintiff in this action has standing, there is no need to consider whether the 

education association Plaintiffs also have standing.”) (citing Clinton v. City of N.Y., 524 

U.S. 417, 431 (1998)); see also Bowsher v. Synar, 478 U.S. 714, 721 (1986) (similar).

Defendant does not challenge that Plaintiffs Whitaker and Shaul have 

demonstrated standing, and to do so would be futile. Plaintiff Whitaker has already 

suffered a concrete, redressable injury traceable to Defendant’s conduct, namely her 

child’s subjection to Defendant’s disparate treatment of transgender minors, and 

Plaintiff Shaul’s injury is imminent in light of her child’s pending name-change 

application. The suit could therefore proceed even if Plaintiff Doe lacked standing to 

sue independently—which she does not.

D. Congress Has Abrogated Judicial Immunity for § 1983 Declaratory Relief.

“The Sixth Circuit has explicitly recognized the availability of declaratory relief 

against judicial officers for claims under Section 1983.” Rodriguez v. Providence Cmty. 

Corr., Inc., 191 F. Supp. 3d 758, 765 (M.D. Tenn. 2016) (citing Ward v. City of Norwalk, No. 

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15-3018, 640 Fed. Appx. 462 (6th Cir. Feb. 3, 2016)). In Ward, the Sixth Circuit explained 

that, after § 1983 was amended in 1996 by the Federal Courts Improvement Act, the 

“the plain language of § 1983 contemplates a declaratory judgment against judicial 

officers . . . in their official capacities.” Ward, 640 F. App’x at 467. Defendant’s citations 

to pre-1996 case law (along with a handful of cases relating to suits for monetary 

damages) are thus unavailing.

Defendant’s citation to Cooper v. Rapp confuses the doctrine of judicial immunity

with Article III standing. 702 F. App’x 328, 333 (6th Cir. 2017). In Cooper, the Sixth 

Circuit explained that although declaratory relief is available as a remedy against state 

court judges, “abstention doctrines and Article III of the United States Constitution still 

serve to limit the availability of such relief.” Id. at 333. As demonstrated above, neither 

abstention doctrines nor Article III standing preclude declaratory relief in this case.

E. Plaintiffs Have Stated Valid Equal Protection Claims Based on 

Discrimination Against Transgender People.

Defendant’s final argument is in effect a motion to dismiss for failure to state a 

claim under Rule 12(b)(6), relying on the allegations in the Complaint and on public 

records. Currier v. First Resolution Inv. Corp., 762 F.3d 529, 533 (6th Cir. 2014). “To 

survive a motion to dismiss, the plaintiff need only plead sufficient factual matter, 

which we must accept as true, to ‘state a claim to relief that is plausible on its face’

meaning that we can draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court 

“must construe the complaint in the light most favorable to the plaintiff and accept all 

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allegations as true.” Doe v. Miami Univ., 882 F.3d 579, 588 (6th Cir. 2018). Defendant’s 

motion should be denied because Plaintiffs allege valid equal protection claims.

1. Transgender People are a Protected Class.

To state a claim for discrimination under the Equal Protection Clause, the 

Plaintiffs need only allege sufficient facts to show that Judge Kirby’s “policies 

intentionally discriminated against [them] because of [their] membership in a protected 

class.” Starr v. Bova, No. 1:15 CV 126, 2015 U.S. Dist. LEXIS 88683, at *4 (N.D. Ohio July 

8, 2015) (citing Henry v. Metropolitan Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990)). 

Transgender people “constitute an ‘identifiable group’ for equal protection purposes.” 

Starr, 2015 U.S. Dist. LEXIS 88683, at *4 (citing Davis v. Prison Health Services, 679 F.3d 

433, 441 (6th Cir. 2012)).

Plaintiffs allege that they are members of a protected group, and that policies 

discriminating against them are subject to heightened scrutiny. Discrimination against 

transgender people warrants heightened scrutiny for two reasons. First, as the Sixth 

Circuit has held, discrimination against a transgender person is discrimination based on 

sex. Equal Employment Opportunity Comm. v. R.G. & G.R. Harris Funeral Homes, Inc., 884 

F.3d 560, 574-581 (6th Cir. 2018) (holding that discrimination against transgender 

employees constitutes sex discrimination and that transgender people are a protected 

class under Title VII); see also Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (holding 

that government discrimination against a transgender person is sex discrimination for 

purposes of equal protection review); Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 

2005) (same). Under settled law, discrimination based on sex warrants heightened 

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equal protection scrutiny. United States v. Virginia, 518 U.S. 515, 531 (1996); Communities 

for Equity v. Mich. Athletic High School Ass’n, 459 F.3d 676, 692-93 (6th Cir. 2006). 

In addition, transgender people also independently meet the criteria for 

heightened scrutiny under the Supreme Court’s traditional test, which considers: “(1) 

whether the class has been historically ‘subjected to discrimination,’; (2) whether the 

class has a defining characteristic that ‘frequently bears no relation to ability to perform 

or contribute to society,’; (3) whether the class exhibits ‘obvious, immutable, or 

distinguishing characteristics that define them as a discrete group,’; and (4) whether the 

class is ‘a minority or politically powerless.’” Bd. of Educ. v. U.S. Dep’t of Educ., 208 F. 

Supp. 3d 850, 873 (S.D. Ohio 2016) (citations omitted). 

This Court and others have held that transgender people, under this four-factor 

test, are a suspect class requiring “heightened scrutiny”:

First, there is not much doubt that transgender people have historically 

been subject to discrimination including in education, employment, 

housing, and access to healthcare. Adkins, 143 F. Supp. 3d at 139. Second, 

there is obviously no relationship between transgender status and the 

ability to contribute to society. Third, transgender people have 

“immutable [and] distinguishing characteristics that define them as a 

discrete group,” Lyng, 477 U.S. at 638, or as the Second Circuit put it in 

Windsor, “the characteristic of the class calls down discrimination when it 

is manifest,” 699 F.3d at 183; see also Adkins, 143 F. Supp. 3d at 139–40 

(noting that transgender people encounter obstacles when there is a 

mismatch between the sex indicated on a birth certificate and the person’s 

gender identity, and that “transgender people often face backlash in 

everyday life when their status is discovered”). Finally, as a tiny minority 

of the population, whose members are stigmatized for their gender nonconformity in a variety of settings, transgender people are a politically 

powerless minority group. The efforts of states to pass legislation 

requiring individuals to use sex-segregated bathrooms that correspond 

with their birth sex are but one example of the relative political 

powerlessness of this group. See Carcaño, 2016 U.S. Dist. LEXIS 114605, 

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2016 WL 4508192, at *6–7 (describing the enactment of North Carolina’s 

“bathroom bill”); see also Adkins, 143 F. Supp. 3d at 140 (noting that there 

are no openly transgender members of the United States Congress or the 

federal judiciary). Therefore, even if Smith did not require that this Court 

apply heightened scrutiny to Jane’s equal-protection claim, the Court 

finds that heightened scrutiny is appropriate under the four-factor test to 

determine suspect and quasi-suspect classifications.

Id. at 874; see also Evancho v. Pine-Richland Sch. Dist., 237 F. Supp. 3d 267, 288 (W.D. Pa. 

2017) (holding that discrimination because of a person’s transgender status warrants 

heightened scrutiny); Bd. of Educ. of the Highland Local Sch. Dist. v. U.S. Dep’t of Educ., 208 

F. Supp. 3d 850, 873-74 (S.D. Ohio 2016) (same); Adkins v. City of N.Y., 143 F. Supp. 3d 

134, 139-40 (S.D.N.Y. 2015) (same); Norsworthy v. Beard, 87 F. Supp. 3d 1104, 1119 (N.D. 

Cal. 2015) (same); Stone v. Trump, 280 F. Supp. 3d 747 (D. Md. 2017) (same); Doe 1 v. 

Trump, 275 F. Supp. 3d 167 (D.D.C. 2017) (same); Karnoski v. Trump, 2017 WL 6311305 

(W.D. Wash. Dec. 11, 2017) (same); Stockman v. Trump, No. EDCV 17-1799 JGB (KKx) 

(C.D. Cal. Dec. 22, 2017) (same).

Under heightened scrutiny, a government policy must be “substantially related 

to a sufficiently important governmental interest” to survive constitutional review. City 

of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441, 105 (1985). “The burden of 

justification is demanding and it rests entirely on the State.” Virginia, 518 U.S. at 513. 

Defendant has not argued that his differential treatment of transgender minors is 

substantially related to an important government interest. Thus, the only point left to 

consider is whether Plaintiffs have pled facts sufficient to plausibly allege that Judge 

Kirby discriminates against transgender people. They have more than adequately done 

so.

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2. Plaintiffs Have Adequately Alleged That Judge Kirby’s Practices And 

Procedures Discriminate Against Transgender Minors.

Defendant concedes that “[t]o prevail on their Equal Protection claim, Plaintiffs 

would have to show that Judge Kirby treats transgender applicants differently than 

similarly situated non-transgender applicants.” Doc. 15, PAGEID #: 113.

Plaintiffs have alleged in detail that Judge Kirby discriminates against 

transgender applicants by utilizing an unconstitutional process and procedure that 

treats the name change applications of transgender minors differently and less 

favorably than those of other minors. Specifically, Plaintiffs have alleged that Judge 

Kirby: assigns all transgender minor name change cases to himself rather than to 

magistrate judges; subjects transgender minors to embarrassing, unusual, and intrusive 

questioning of a personal nature; asks for medical evidence to be presented; and issues 

“copy and paste” decisions denying their petitions. 

By contrast, other minors—that is, “similarly situated” non-transgender 

applicants—generally have their petitions heard by magistrate judges, are not subject to 

intrusive, unusual, and embarrassing questions, are not asked to present medical 

evidence, and obtain a judgment based on an individualized determination of their 

request. Construing the Complaint in the light most favorable to Plaintiffs, the 

allegations are sufficient to allow for a reasonable inference that Judge Kirby 

discriminates against minors because of their transgender status.

Defendant’s contention that his court has granted name change applications by 

transgender adults and minors in the past does not excuse his current pattern and 

Case: 1:18-cv-00540-WOB Doc #: 19 Filed: 09/10/18 Page: 17 of 19 PAGEID #: 160
[ 18 ]

practice of unequal treatment of the Plaintiffs and other transgender minors. Doc. 15, 

PAGEID #: 100. It is well established that an individual “does not have to discriminate 

against all members of a class to illegally discriminate against a given member of that 

class.” Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 720 (6th Cir. 2006) (quoting 

Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 323 (3d Cir. 2000)) (holding that 

white police officers could maintain race discrimination claim if they could prove that 

promotion decisions were made based on race, even if the majority of individuals 

promoted were white). A policy or practice that discriminates against some people 

because they are transgender is no less unlawful than a policy or practice that 

discriminates against all transgender people. Moreover, an instance of treating a 

member of a particular group equally in the past does not affect the validity of an equal 

protection claim alleging a current pattern and practice of unequal treatment of the 

group.

Plaintiffs have alleged that the Defendant provides non-transgender minors with 

a normal judicial process and routinely grants their applications or, if a petition is 

denied, permits them to reapply while they are minors, but subjects transgender minors

to a barrage of unusual procedural barriers, issues cut and paste opinions denying their 

petitions, and bars them from reapplying until adulthood. Therefore, Plaintiffs have 

sufficiently pled that Defendant’s practices violate equal protection by discriminating

against transgender minors based on their sex and transgender status, and Defendant’s 

motion to dismiss for failure to state a claim should be denied.

Case: 1:18-cv-00540-WOB Doc #: 19 Filed: 09/10/18 Page: 18 of 19 PAGEID #: 161
[ 19 ]

II. CONCLUSION.

For the above reasons, Plaintiffs respectfully request that this Court deny 

Defendant’s motion to dismiss.

Respectfully Submitted,

Dated: September 10, 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 pending

CERTIFICATE OF SERVICE

I, Joshua Langdon, Esq., do hereby certify that on this 10th 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.

/s/ Joshua R Langdon

Case: 1:18-cv-00540-WOB Doc #: 19 Filed: 09/10/18 Page: 19 of 19 PAGEID #: 162