Doe et al v. Weiser et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 1:24-cv-2185-CNS-SBP
JOHN AND JANE DOE,
Plaintiffs,
v.
PHILIP WEISER, in his official capacity as Attorney General of the State of Colorado;
SUSANA CÓRDOVA, in her official capacity as Commissioner of the Colorado
Department of Education; and
SCHOOL DISTRICT 27J a/k/a 27J SCHOOLS, in its official and personal capacities,
Defendants.
ORDER
Before the Court is Plaintiffs’ motion for a preliminary injunction. ECF No. 2.
Defendants School District 27J (the District), Susana Córdova (the Commissioner), and
Philip Weiser (the Attorney General) all oppose Plaintiffs’ request for a preliminary
injunction. ECF Nos. 25, 27, 29. 1 Plaintiffs and Defendants Córdova and Weiser also
requested that the Court rule on the motion for preliminary injunction without a hearing.
For the reasons below, the Court DENIES the motion for preliminary injunction. 2
1 Plaintiffs recently filed a notice of supplemental authority, ECF No. 78, but the Court has determined that
such authority is relevant to the merits of the case rather than the preliminary injunction. The Court will
address it in its forthcoming order on the motions to dismiss.
2 This Order renders Defendant Córdova’s motion for discovery, ECF No. 37, moot.
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I. 	BACKGROUND
In this lawsuit, Plaintiffs request a declaration that House Bill 24-1039, codified at
Colo. Rev. Stat. §§ 22-1-145, et seq. (the Law), and the District’s related policies, 3 are
both facially invalid and invalid as applied to Plaintiffs. ECF No. 52 at 38 (First Amended
Complaint). 	They 	also 	seek 	a 	permanent 	injunction 	preventing 	Defendants 	from
implementing or enforcing the Law and Policies. Id. In the present motion, Plaintiffs seek
to preliminarily enjoin Defendants from enforcing the Law and Policies as applied to their
two children, A.D. and B.D., and from “socially transitioning” A.D. and B.D. without
Plaintiffs’ written consent. ECF No. 2 at 1–2.
A. HB24-1039 and the District’s Antidiscrimination Policies
Colorado statutes impose nondiscrimination duties on school districts. See Colo.
Rev. Stat. § 22-32-109(1)(ll)(I)(A). Since 2008, Colorado’s nondiscrimination laws have
included sexual orientation, which was defined to include transgender status. 2008 Colo.
Sess. Laws, ch. 341. In 2021, the legislature updated the legal framework to distinguish
sexual orientation from gender identity and gender expression. Colo. Rev. Stat. §§ 24-
34-301(9), (10), (24). Colorado requires school districts to adopt policies to address
discrimination and harassment, which must include procedures for accepting complaints,
investigating complaints, and providing support. Colo. Rev. Stat. §§ 22-1-143(1)–(2). The
policies must be public, clear, and communicated frequently to parents and students.
3 Plaintiffs refer to the District policies collectively as the “Parental Exclusion Policy” or the Policy, and state
that it includes the LGBTQ+ Toolkit, the Bullying Prevention and Education Policy: JICDE (forbidding
“[g]ender identity harassment”), and Policy ACA. ECF No. 52, ¶ 73. Calling the District’s antidiscrimination
policies the “Parental Exclusion Policy” is inherently misleading and presupposes that the policies exclude
parental involvement. As will be discussed in depth below, the policies actually encourage parental
involvement. Thus, the Court will refer to the policies, when referring to them collectively, as the Policies.
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Colo. Rev. Stat. § 22-1-143(3). Related investigations must be confidential. C.R.S. §§ 22-
1-143(2a), (7).
House Bill 24-1039, effective April 2024, requires public school employees to
address students by their chosen name reflecting that student’s gender identity, and
provides that knowingly failing to do so is discriminatory. 4 C.R.S. § 22-1-145 et seq. The
student’s wishes, therefore, control. Id. For many school districts, this change merely
codified their existing antidiscrimination policies and practices. See ECF No. 27 at 5. HB
24-1039 does not mention parental consent or exclusion and gives districts substantial
discretion over implementation. Id.; C.R.S. § 22-1-145(5).
The rights of parents are codified in other statutes. Relevant here, parents receive
notice of a district’s policies every year, C.R.S. § 22-1-143(3)(c); they have a right to
access student records upon request, C.R.S. § 22-1-145(5); and they have a right to
request medical accommodations, C.R.S. § 22-1-143(6)(a).
The District has policies that govern the process for supporting transgender, non-
binary, and gender non-conforming students. ECF No. 52, ¶¶ 71–83. Generally, the
policies prohibit discrimination and bullying on the basis of sex, sexual orientation, gender
identity, gender expression, and other categories. See Policy AC, ECF No. 25-1; Policy
JICDE, ECF No. 25-2. The LGBTQ+ Toolkit (the Toolkit) contains the District’s policies,
procedures, and resources for supporting LGBTQ+ students. ECF No. 52, ¶¶ 71–72; ECF
4 C.R.S. § 22-1-145(1)(a) states:
(2) A public school employee, educator, and contractor . . . shall address a student
by the student’s chosen name and use the student’s chosen name in school and
during extracurricular activities.
(3) Unless done at a student’s request, knowingly or intentionally using a name
other than the student’s chosen name or the knowing or intentional avoidance or
refusal to use a student’s chosen name is discriminatory.
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No. 52-J (the Toolkit). It has been in place since February 2021, undergoing minor
revisions after the passage of HB24-1039 in April 2024. Id.
The Toolkit directs staff to affirm a student’s choice if they initiate a discussion
about changing their name or pronouns and discuss how best to support that choice. ECF
No. 52-J at 4–5. Students can change their name, pronouns, and gender in their school
records, which, students are advised, are visible to anyone with access to the records,
including parents, guardians, and staff. Id. at 6–7, 8. Alternatively, students can note their
preferred name or pronouns in a “flag” in their online file that only District staff can view.
Id. at 7–8. The Toolkit notes that, because the pronoun flag is not visible to parents, it
may be used by students who “are not ‘out’ to their parents/guardians.” ECF No. 52-J at
8.
The Toolkit directs counselors to work with the student to decide whether, and to
what extent, the parents or guardians will be involved, and counselors “must consider the
health, well-being and safety of the student in transition.” Id. at 6. Where possible, the
Toolkit encourages parental involvement: “the goal should be to support the student’s
family in accepting their child’s gender identity and seek opportunities to foster a better
relationship between the student and their family.” Id. at 12–13. Counselors are also
advised to “ask whether the student’s family is accepting in order to avoid inadvertently
putting the student at risk of greater harm by discussing [the issue] with the student’s
family.” Id. at 12. The Toolkit also states that “school staff shall not disclose any
information that may reveal a student’s transgender status to others, including parents or
guardians and other school staff, unless legally required to do so or unless the student
has authorized such disclosure,” which includes using “the student’s legal name and the
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pronoun corresponding to the student’s gender assigned at birth unless the student,
parent, or guardian has specified otherwise.” Id. at 14. The Toolkit further emphasizes the
importance of transgender students feeling “safe enough to be themselves” and having
“a safe place to learn.” Id. at 12.
B. The Does’ Children: A.D. and B.D.
A.D. and B.D. attend school in School District 27J in Brighton, Colorado. ECF No.
52, ¶¶ 84, 157. 5 A.D. is currently a junior in high school, and B.D. is in middle school. Id.,
¶¶ 138, 157. A.D. currently uses her birth name and “she/her” pronouns. 6
In eighth grade, A.D. told her counselor that she was questioning her gender
identity as female, that she preferred “they/them/their” pronouns, and that her parents did
not support her questioning of her gender identity. ECF No. 25-E (Decl. Middle School
Counselor), ¶ 3. The counselor, with AD’s permission, put a “flag” in her online file noting
that A.D. preferred “they/them/their” pronouns, which was only visible to District staff. Id.,
¶ 4. The counselor told A.D.’s teachers about the preferred pronouns. Id., ¶ 5. The
counselor did not coach A.D. or encourage questioning of her gender identity or use of
“they/them/their” pronouns. Id., ¶ 6. The counselor did not tell A.D.’s parents about the
flag because A.D. had told the counselor that her parents did not support her questioning
her gender identity. Id., ¶ 7–8. Importantly, Plaintiffs never asked the counselor about this.
Id. A.D. never told the counselor that she identified as a transgender male or that she
wanted to be referred to by another name than A.D. Id., ¶ 10.
5 The facts in this section are taken from the amended complaint, ECF No. 52, and from declarations
attached to the District’s response to the preliminary injunction request, ECF No. 25.
6 In the briefing, Plaintiffs refer to A.D. with she/her pronouns and indicate that she currently uses these
pronouns. The Court will therefore refer to A.D. using she/her pronouns.
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After beginning high school in August 2022, A.D. met with her assigned school
counselor. The counselor greeted A.D. using her birth name, but A.D. responded, “My
name is Z.D.” ECF No. 25-F (Decl. High School Counselor 1), ¶ 3. The counselor noticed
the pronoun flag and concluded that A.D. was questioning or transitioning her gender
identity. Id., ¶ 3. The counselor and A.D. did not discuss her potential transgender status
at the meeting, nor did the counselor coach or encourage A.D. to question or transition
her gender identity. Id. In a later meeting, A.D. told the counselor that she was struggling
with mental health, in part because her parents did not support her being transgender.
Id., ¶ 5. The counselor referred A.D. to IMatter, a state-funded program that provides up
to six free, virtual, and confidential therapy sessions to Colorado youth. Id.
In March 2023, A.D. told the counselor that her mom had emailed her expressing
anger with A.D. for being transgender, using a different name at school, and accessing
therapy through IMatter. Id., ¶ 9. A.D. told the counselor that she was afraid to go home
and that her parents “don’t understand me; they want me to be a girl, but I don’t feel like
a girl. In my head and in my body, I feel like a boy.” Id., ¶ 9.
The counselor, with A.D.’s permission, called A.D.’s mom to talk about the issue.
Id., ¶ 9. In the conversation, the counselor told Ms. Doe that A.D. was extremely upset
over the email and was afraid to go home. Id., ¶ 10. Ms. Doe responded, “I would never
harm my child; I’m just worried about her.” Id. The counselor told Ms. Doe that A.D. was
very stressed that her parents did not accept her being transgender; Ms. Doe responded,
“I’m a feminist, and [A.D.] is not honoring her femininity.” Id. The counselor concluded
that, while A.D.’s parents did not support her being transgender, A.D. did not appear to
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be in danger of abuse or neglect. Id. A.D. confirmed the next day that she was physically
safe, but that her parents “just don’t understand who I am.” Id., ¶ 11.
In May 2023, A.D. and the counselor created a gender support plan so that when
A.D. had a new counselor her sophomore year, the new counselor would know A.D.’s
chosen name and pronouns. ECF No. 25-F, ¶ 12; ECF No. 25-G (GSP). The gender
support plan stated that A.D.’s parents were aware that she was transgender but were
not supportive and that staff should refer to A.D. using her birth name and she/her
pronouns when speaking with her parents. ECF No. 25-G at 2. A.D. never authorized the
counselor to share the plan, and thus, the counselor did not share it with anyone. ECF
No. 25-F, ¶ 12.
In March 2024, the spring of A.D.’s sophomore year, A.D. told her parents that she
“no longer identified as a boy and wished to return to living life as a girl.” ECF No. 52, ¶
135. In May 2024, she asked another school counselor to remove the pronoun flag from
her online file. Id., ¶ 136. A.D. did not ask her teachers to stop calling her Z.D. or using
“they/them/their” pronouns, and her teachers continued to refer to her that way. Id., ¶¶
136–37.
C.R.S. § 22-1-145 went into effect on April 29, 2024. In July 2024, consistent with
C.R.S. § 22-1-145, the District adopted Policy ACA, which “outlines the process by which
students may change the name they are referred to at school to align with their gender
identity.” ECF No. 25-J (Policy ACA). The policy states that students may choose to be
identified in school by the first name that they have designated and may request a change
to their name or gender on their official student record. Id. Students do not need parental
approval to use a chosen name, but parents “may be notified of their student’s name
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change if appropriate.” Id. The Toolkit was then updated to reflect Policy ACA. ECF No.
25-C at 6–7.
Now in A.D.’s junior year, which started in August 2024, her new teachers call her
A.D. and use “she/her” pronouns. Id., ¶¶ 138–39. A.D. has informed some of her former
teachers that she goes by A.D., including the art teacher. Id.; ECF No. 25-L (Art Teacher
Decl.), ¶ 4. She also told the art teacher, “Nothing to worry about, that’s just my choice.”
Id. A.D. also corrected the art teacher after the teacher used “they/them/their” pronouns,
noting that she preferred “she/her” pronouns. Id., ¶ 5. A.D. intends to tell more of her prior
teachers and advisers when she feels the time is right. ECF No. 52, ¶ 141.
A.D.’s sibling, B.D., has not indicated any desire to use pronouns other than
“she/her” or to use a name other than B.D. Plaintiffs allege that the District is introducing
her to the concept of transgender identities and that there are pressures for her to “socially
transition,” which “makes it likely” that she will seek to use different pronouns at school.
ECF No. 2 at 25.
II. 	LEGAL STANDARD
A preliminary injunction is an “extraordinary remedy.” U.S. ex rel. Citizen Band
Potawatomi Indian Tribe of Oklahoma v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886,
888 (10th Cir. 1989). To prevail on a preliminary injunction motion, movants bear the
burden of showing that: (1) they are likely to succeed on the merits; (2) they will suffer
irreparable injury if the injunction is denied; (3) the threatened injury outweighs the injury
the injunction would cause the opposing party; and (4) the injunction would not adversely
affect the public interest. See Beltronics USA, Inc. v. Midwest Inventory Distribution, LLC,
562 F.3d 1067, 1070 (10th Cir. 2009) (citation omitted). “An injunction can issue only if
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each factor is established.” Denver Homeless Out Loud v. Denver, Colorado, 32 F.4th
1259, 1277 (10th Cir. 2022) (citation omitted). “To constitute irreparable harm, an injury
must be certain, great, actual, and not theoretical.” Heideman v. S. Salt Lake City, 348
F.3d 1182, 1189 (10th Cir. 2003). Irreparable harm is more than merely serious or
substantial harm. Id. “[T]he party seeking injunctive relief must show that the injury
complained of is of such imminence that there is a clear and present need for equitable
relief to prevent irreparable harm.” Id.
The purpose of injunctive relief is to prevent future violations of the law, and thus
a plaintiff must demonstrate “a good chance of being likewise injured in the future.” United
States v. W. T. Grant Co., 345 U.S. 629, 633 (1953); Facio v. Jones, 929 F.2d 541, 544
(10th Cir. 1991). An evidentiary hearing in response to a motion for preliminary injunction
is not required, and courts have discretion to determine whether to hold such a hearing.
See Carbajal v. Warner, 561 F. App’x 759, 764 (10th Cir. 2014).
III. ANALYSIS
No party requested a preliminary injunction hearing. Because there is very little
factual dispute, the Court finds that a hearing would not assist in the resolution of the
motion. The Court further finds that Plaintiffs cannot establish all four factors necessary
for a preliminary injunction, particularly likelihood of success on the merits, and thus
declines to issue a preliminary injunction.
A. 	Likelihood of Success on the Merits
To warrant a preliminary injunction, Plaintiffs must first show that they are likely to
succeed on the merits. Plaintiffs assert that the Law and Policies violate their substantive
due process rights, procedural due process rights, and First Amendment rights. Plaintiffs
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argue that the Law and Policies are unlikely to survive constitutional scrutiny, so it is likely
that they will win a merits trial. Defendant Weiser argues that Plaintiffs are unlikely to
succeed on the merits because he is entitled to sovereign immunity, and the remaining
Defendants argue that Plaintiffs are unlikely to succeed on the merits because they lack
standing and the request suffers from other deficiencies. The Court addresses these
arguments in turn, ultimately agreeing with Defendants on both points.
1. 	Attorney General Immunity
Defendant 	Weiser, 	Colorado’s 	Attorney 	General, 	argues 	that 	Eleventh
Amendment sovereign immunity shields him from suit. The Court agrees.
“The Eleventh Amendment is a jurisdictional bar that precludes unconsented suits
in federal court against a state and arms of the state.” Peterson v. Martinez, 707 F.3d
1197, 1205 (10th Cir. 2013) (quoting Wagoner Cnty. Rural Water Dist. No. 2. v. Grand
River Dam Auth., 577 F.3d 1255, 1258 (10th Cir. 2009)). The bar extends to suits against
officials in their official capacities. Hendrickson v. AFSCME Council 18, 992 F.3d 950,
965 (10th Cir. 2021) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)).
An exception to the bar exists for suits against state officials “seeking to enjoin
alleged ongoing violations of federal law,” but the official “must have some connection
with the enforcement of the act.” Peterson, 707 F.3d at 1206 (quoting Crowe & Dunlevy,
P.C. v. Stidham, 640 F.3d 1140, 1154 (10th Cir. 2011)); Ex parte Young, 209 U.S. 123,
(1908). For the exception to apply, the state official must have “a particular duty to
enforce” the statute and “a demonstrated willingness to exercise that duty.” Peterson, 707
F.3d at 1205. Such a duty cannot just be a “mere general duty to enforce the law”; it must
arise 	from 	the 	challenged 	law, 	another 	law, 	an 	administrative 	delegation, 	or 	a
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demonstrated practice of enforcing a provision. Hendrickson, 992 F.3d at 965; Peterson,
707 F.3d at 1207.
The Attorney General argues that HB24-1039 does not impose any enforcement
duty on him. Instead, the Law delegates enforcement to the public schools: it allows
students to file a report or complaint with their public school or local education provider
that governs their public school. C.R.S. § 22-1-145(4). Absent a particular duty to enforce
in the statute, the exception does not apply.
Plaintiffs disagree, arguing that the Attorney General has the general enforcement
power to enforce Colorado’s laws and that this duty is sufficient to avoid Eleventh
Amendment immunity. Plaintiffs cite to Colo. Rev. Stat. § 24-31-113, which grants the
Attorney General the authority to bring an enforcement action against “any governmental
authority” for violating state law. However, this is just a general duty to enforce laws, which
is not enough to avoid Eleventh Amendment immunity. An official’s “general enforcement
power . . . does not suffice for Ex parte Young.” Hendrickson, 992 F.3d at 967. Thus, the
Attorney General does not have a particular duty to enforce HB24-1039.
Nor does the complaint establish that the Attorney General has demonstrated a
willingness to exercise an enforcement duty in this arena. There are no allegations that
the Attorney General has taken action to enforce HB24-1039 against the District, or any
other school district. Plaintiffs instead refer to an amicus brief that the Attorney General
filed in the Ninth Circuit in support of a similar law in California. ECF No. 34-6 at 1. The
brief referenced Colorado’s “compelling interest in providing public schools where all
students are included and can thrive.” Id. Based on this asserted interest, Plaintiffs argue,
the Attorney General is likely to bring an enforcement action against a school district that
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violated 	HB24-1039. 	Id. 	However, 	this 	statement 	only 	demonstrates 	the 	Attorney
General’s 	stated 	commitment 	to 	antidiscrimination; 	that 	alone 	is 	insufficient 	to
demonstrate a willingness to enforce the law. 7
Because Plaintiffs have not established that the Attorney General has a particular
duty to enforce HB24-1039, or that he has demonstrated a willingness to exercise that
duty, he appears to be entitled to Eleventh Amendment sovereign immunity. Plaintiffs are
thus unlikely to succeed on the merits against the Attorney General.
2. 	Standing
The other Defendants argue that Plaintiffs lack standing and so cannot succeed
on the merits. At the preliminary injunction stage, “a plaintiff must make a ‘clear showing’
that they have standing and are ‘entitled to such relief.’” Nat’l. Ass’n for Gun Rights v.
Polis, No. 24-cv-00001-GPG-STV, 2024 WL 3085865 at *5 (D. Colo. May 2, 2024) (citing
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Rocky Mountain
Gun Owners v. Polis, 121 F.4th 96, 108 (10th Cir. 2024) (“At the preliminary injunction
stage, then, the plaintiff must make a ‘clear showing’ that [they] [are] ‘likely’ to establish
each element of standing.”). The Court agrees that Plaintiffs have failed to make a clear
showing that they suffered an injury-in-fact sufficient to establish standing at the
preliminary injunction stage, and so they are unlikely to succeed on the merits.
To establish Article III standing, plaintiffs must first have suffered an “injury in fact”
to a legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Second, plaintiffs must establish that the injury is fairly traceable to the challenged action.
7 Mirabelli v. Olson, 691 F. Supp. 3d 1197, 1223–24 (S.D. Cal. 2023), in contrast, held that the California
Attorney General was a proper party because the Attorney General had previously taken enforcement
action against two school districts.
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Id. Third, “it must be likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Id. (internal quotations and citations omitted). Here,
the issue is whether Plaintiffs have established an injury-in-fact.
a. Injury-In-Fact
To constitute an injury in fact, a plaintiff must show that they have suffered or likely
will suffer an “invasion of a legally protected interest” that is both (a) “concrete and
particularized” and (b) “actual or imminent, not conjectural or hypothetical.” Rocky
Mountain Gun Owners, 121 F.4th at 109 (quoting Lujan, 504 U.S. at 560). For an injury
to be “concrete,” it “must be ‘de facto,’ it must ‘exist,’ and it must be ‘real’ rather than
‘abstract.’” Id. (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016)). It need not be
tangible. Id. To be “particularized,” the injury must “affect the plaintiff in a personal and
individual way.” Lujan, 504 U.S. at 560 n.1.
An injury-in-fact may be “imminent,” meaning that a plaintiff “need not wait for the
harm to occur” or expose themselves “to actual arrest or prosecution to be entitled to
challenge a statute” that they claim “deters the exercise” of their constitutional rights.
Rocky Mountain Gun Owners, 121 F.4th at 109; Steffel v. Thompson, 415 U.S. 452, 459
(1974). “An allegation of future injury may suffice if the threatened injury is ‘certainly
impending,’ or there is a ‘substantial risk’ that the harm will occur.’” Susan B. Anthony List
v. Driehaus, 573 U.S. 149, 159 (2014) (quoting Clapper v. Amnesty Int’l USA, 568 U.S.
398, 409–10, 414 n.5 (2013). However, “‘allegations of possible future injury’ are not
sufficient.” Clapper, 569 U.S. at 409 (quoting Whitmore, 495 U.S. at 158). The threatened
injury “must be certainly impending and not merely speculative.” Tandy v. City of Wichita,
380 F.3d 1277, 1283 (10th Cir. 2004) (internal quotations omitted).
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Pre-enforcement challenges to laws that have yet to be applied to the plaintiff
typically occur as challenges to: (1) an existing law under which the plaintiff has previously
been prosecuted; (2) an existing law where the plaintiff has yet to be prosecuted; or (3)
an enacted law before it takes effect. Rocky Mountain Gun Owners, 121 F.4th at 110. To
bring a pre-enforcement challenge, the plaintiff must show: (1) “an intention to engage in
a course of conduct arguably affected with a constitutional interest, but proscribed by” the
challenged statute; and (2) that “there exists a credible threat of prosecution thereunder.”
Id. (quoting Susan B. Anthony List, 573 U.S. at 159). The first requirement involves
presenting “concrete plans to engage in the conduct” that would potentially violate the
challenged statute once it goes into effect. Colo. Outfitters Ass’n v. Hickenlooper, 823
F.3d 537, 551 (10th Cir. 2016). “Speculative plans or vague intentions to potentially
violate the challenged statute are insufficient.” Rocky Mountain Gun Owners, 121 F.4th
at 110 (quoting Lujan, 504 U.S. at 564). Plaintiffs must show “a credible and imminent
threat of enforcement.” Baker v. USD 229 Blue Valley, 979 F.3d 866, 873 (10th Cir. 2020).
For the most part, Plaintiffs are bringing a pre-enforcement challenge. A.D.
stopped using “they/them” pronouns and the name Z.D. in March 2024, and the Law went
into effect afterwards, on April 29, 2024, meaning that Plaintiffs are challenging a law that
has not yet been applied to their children. As to the Policies, the only policy that was in
place and applied to A.D. was the Toolkit; the other policies were not in place until after
she returned to using “she/her” pronouns and the name A.D. A preliminary injunction is
only appropriate to prevent future harm, so any prior application of the Toolkit cannot be
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addressed by a preliminary injunction. 8 The focus is on any ongoing injury and risk of
future harm caused by the Law and Policies.
Plaintiffs argue that, even though the Law has not yet been applied to them, they
have suffered both actual injury in the form of ongoing harm and imminent injury due to a
risk of future harm.
i. 	Actual Injury: Ongoing Harm
Defendants argue that Plaintiffs are not suffering an actual injury because the Law
and Policies are not being applied to their children. Plaintiffs argue that they are suffering
three ongoing injuries, even if their children never seek to change their name at school:
Plaintiffs’ inability to obtain accurate information about whether their children are “social
transitioning”; the creation of a decisional framework that authorizes children to make
decisions without their parents; and the fact that Plaintiffs have changed their behavior in
response to the Law and Policies. ECF No. 34 at 9.
The Court is not convinced that Plaintiffs have made a clear showing of ongoing
harm. While Plaintiffs point to a case concluding that a parent who requests information
about what name and pronouns their child uses at school, and is denied or lied to, may
have suffered an injury-in-fact, no such thing occurred here. See Willey v. Sweetwater
Cnty. Sch. Dist. No. 1 Bd. of Trustees, 680 F. Supp. 3d 1250, 1277 (D. Wyo. 2023).
Moreover, absent such a denial happening, the possibility of that denial does not
constitute ongoing harm. See Parents Protecting Our Children, UA v. Eau Claire Area
Sch. Dist., 657 F. Supp 3d 1161, 1170–71 (W.D. Wis. 2023), aff’d, 95 F.4th 501 (7th Cir.
2024), cert. denied, 2024 WL 5036271 (Dec. 9, 2024) (finding that plaintiffs did not have
8 Moreover, the lack of irreparable harm, as discussed below, also weighs against a preliminary injunction
with respect to the Toolkit.
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standing partly because “plaintiff does not allege . . . that any parent or guardian [in the
plaintiff organization] has been denied information related to their child’s identity”). 9
The second and third theories of ongoing harm are similarly unlikely to succeed.
Plaintiffs argue that they have a fundamental right to be involved in their children’s
decision-making process; however, they have not met their burden of showing that the
Law or Policies infringe on this right. Despite the claim that “the District is socially
transitioning their children,” the District is not the decision maker at issue: the student is.
The Law and Policies only require the District to follow the student’s chosen name and
pronouns and to provide support. There is no indication that the Law or Policies provide
the District with any decision-making power, and there is no indication that it shifts
decision-making power from parents. The power to make decisions regarding a student’s
preferred name and pronouns has always resided with the student.
Plaintiffs’ third theory of ongoing harm is that they are injured by having to change
their behavior because of the Law and Policies by requiring them to speak to their children
about gender-related issues, self-censor their speech with B.D. to avoid implying that they
would not approve of a social transition, and monitor their children’s activities at school
more closely. ECF No. 34 at 18. The Court is not convinced that Plaintiffs are “required
to engage in these behavioral modifications” to counter the impacts on their relationships
with their children, or that such modifications constitute harm. The only caselaw Plaintiffs
cite to support this theory is a dissent and a case in which the Supreme Court found that
it was reasonable to expect that illegal discharges of pollutants into a river would cause
nearby residents to curtail their recreational use of that waterway. Friends of the Earth,
9 Because this case appeared to be directly on point, the Court delayed issuing this Order pending a
decision on the petition for certiorari.
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Inc. v. Laidlaw Env’t. Servs., Inc., 528 U.S. 167, 184 (2000). In contrast, here, there is no
reasonable causal connection between these alleged behavioral shifts and the Law and
Policies. It is also unclear how the alleged behavioral shifts are harmful, whereas losing
recreational access to a waterway clearly is.
These theories of ongoing harm essentially boil down to fears that the Law and
Policies might be applied in the future, which is not enough to confer standing. See
Parents Protecting Our Children, UA, 657 F. Supp 3d. at 1170–71 (“Although plaintiff
argues that defendants’ Guidance denies its members the information they need to
exercise their constitutional decision-making authority regarding their children, the actual
application 	of 	the 	Guidance 	to their children 	remains 	fatally 	speculative.”). 	These
allegations do not support an inference that any actual harm is presently occurring.
ii. 	Imminent Injury: Future Harm
Plaintiffs also argue that they face a “realistic danger” of future harm: that A.D. will
seek to re-transition, or that B.D. will seek to transition, in the relatively near future and
that the Law and Policies will be enforced to allow them to use different names and
pronouns at school without Plaintiffs’ consent or knowledge. Id. at 9–10. Plaintiffs argue
that there is “a realistic danger that [A.D.] will come to identify as a boy again and seek to
be socially transitioned,” and that the same is true of B.D. because “the District is
introducing the concept of transgender identities to her at too young of an age to
comprehend, there are peer and other outside pressures at the District to socially
transition, and the environment to which B.D. is exposed at her middle school makes it
likely that she will come to have a transgender identity and seek to be socially transitioned
at school.” ECF No. 2 at 24.
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The 	Court 	agrees 	with 	Defendants 	that 	Plaintiffs 	have 	only 	established 	a
speculative possibility of injury. It is possible that A.D. will change her mind and again
choose to use “they/them/their” pronouns and the name Z.D., but this is merely
speculation that does not rise to “certainly impending.” Plaintiffs do not currently have
“concrete plans” or “an intention to engage in a course of conduct” that the Law or Policies
would proscribe, because A.D. does not currently have the intention of using non-female
pronouns or the name Z.D. again.
As Defendants point out, Plaintiffs allege that A.D. currently identifies as a girl,
“regrets wanting to transition and now believes that her underlying mental health struggles
prompted her to adopt a transgender identity,” and “is thankful that her parents did not
allow 	her 	to 	undergo 	irreversible 	medical 	procedures.” 	ECF 	No. 	52, 	¶¶ 	142–43.
Defendants argue that these allegations, particularly that she regrets wanting to transition,
indicate that it is improbable that A.D. chooses to use “they/them/their” pronouns or the
name Z.D. again. The possibility that A.D. might (1) identify as non-female in the future,
(2) ask the District to use a different chosen name or pronouns, and (3) ask the District to
not include her parents in the process, is too attenuated and speculative to show a
credible and imminent threat of enforcement. See Clapper v. Amnesty Int’l USA, 568 U.S.
398, 409 (2013) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (“[W]e have
repeatedly reiterated that ‘threatened injury must be certainly impending to constitute
injury in fact,’ and that ‘[a]llegations of possible future injury’ are not sufficient.”).
Plaintiffs also argue that A.D. faces social pressure against de-transitioning, which
makes it more likely that she will choose to identify as a boy. Again, the possibility that
A.D. may change her mind due to alleged pressures is not sufficient to classify A.D.’s
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potential future choice to use “they/their/them” pronouns or another name at school as
“certainly impending.” And, as the District points out, the law only applies to students
choosing to use a different name to reflect their gender identity; it would not apply to a
student choosing to use a different name to conform to peer pressure. ECF No. 27 at 10.
The Court is also not convinced that Plaintiffs have established injury through the
possibility that B.D. might choose to socially transition at school. There is no indication
that B.D. has ever expressed any transgender or gender nonconforming identification.
Alleged but unidentified social and environmental pressures to transition are not sufficient
to make B.D.’s potential future transition into anything other than speculation.
In sum, the possibility of Plaintiffs’ future injury is too attenuated and too
speculative. Other federal courts have held the same regarding similar policies. Parents
Protecting Our Children, 657 F. Supp. 3d at 1161; Parents Defending Education v. Linn-
Mar Cmty. Sch. Dist., 629 F. Supp. 3d 891 (N.D. Iowa 2022) (vacated as moot following
legislation passage) (finding no standing because the “theory that (1) their child will
express a desire for or indicate by mistake a desire for a plan, (2) the child will be given
a plan, (3) without parental consent or knowledge, (4) and the information will be hidden
or denied when parents ask requires too many speculative assumptions without sufficient
factual allegations to support a finding of injury”). As in Clapper, the chain of causation is
also weakened by its reliance on third parties’ discretionary acts: the student’s choice to
express a desire for new pronouns and name without their parents’ involvement.
Because Plaintiffs have not made a clear showing that they have standing at this
stage, they are unlikely to succeed on the merits. The first preliminary injunction factor
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weighs in favor of Defendants, which could end the analysis. However, the other factors
also favor Defendants.
B. 	Irreparable Injury
The second preliminary injunction factor is whether the movants will suffer
irreparable injury without an injunction. Infringement of a constitutional right is typically
enough, and most courts require no further showing. Awad v. Ziriax, 670 F.3d 1111, 1131
(10th Cir. 2012). However, as discussed above, Plaintiffs have not made a clear showing
of a constitutional injury sufficient to establish standing. Similarly, following the same
analysis, Plaintiffs have not shown that they will suffer an irreparable injury without an
injunction, because it is unlikely that they can establish that their constitutional rights are
being, or will be, infringed.
Additionally, 	the 	delay 	in 	the 	challenge 	to 	the 	Toolkit 10 	weakens 	Plaintiffs’
argument of irreparable injury. The Toolkit went into effect in February 2021; this
challenge was brought three years later, in 2024. The Tenth Circuit has held that “delay
in seeking [injunctive] relief cuts against finding irreparable injury.” Kan. Health Care
Ass’n, Inc. v. Kan. Dep’t of Soc. & Rehab. Servs., 31 F.3d 1536, 1543–44 (10th Cir.
1994) (cleaned up). Three years of delay in seeking emergency relief undermines
Plaintiffs’ argument that emergency relief is necessary. See Slusser v. Mountain W. Conf.,
No. 1:24-CV-03155-SKC-MDB, 2024 WL 4876221, at *7 (D. Colo. Nov. 25, 2024)
(denying injunctive relief and finding delay in bringing suit—two years after enactment
and months after it was first enforced—was not reasonable); GTE Corp. v. Williams, 731
F.2d 676, 679 (denying preliminary injunction and noting “movant’s delay in bringing suit
10 Arguably the real focus of Plaintiffs’ claims, as it is the policy that most directly addresses parental
support.
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is an important factor in determining irreparable harm.”). Similarly here, Plaintiffs’ three-
year delay in challenging the Toolkit undermines their claim of impending irreparable
injury. The second factor also favors Defendants.
C. 	Balance of Harms
The balance of harms factor also favors denying the injunction. Absent an
injunction, Plaintiffs face a speculative possibility of future harm. However, as the
requested injunction would only enjoin Defendants from enforcing the Law and Policies
as applied to Plaintiffs’ children, granting an injunction for that limited purpose would not
result in much harm to the District, as long as it does not impact other students. However,
it is possible that a limited injunction could discourage the District from applying the Law
and Policies to other students. This would be a tangible harm because it would impede
the District’s ability to support LGBTQ+ students and create a learning environment free
from discrimination. The balance of harms factor is largely neutral because it would only
apply to Plaintiffs’ children, but it slightly favors Defendants.
D. 	Public Interest
It is in the public interest to protect Plaintiffs’ constitutional rights. However, it is
unlikely that Plaintiffs will be able to show that their constitutional rights have been
infringed, as discussed above. The public also has an interest in establishing learning
environments free from discrimination, and Defendants have made a clear showing that
the Law and Policies facilitate that interest. This factor favors Defendants.
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IV. 	CONCLUSION
Because Plaintiffs have not met their burden of showing that each preliminary
injunction factor is met, the Court DENIES their motion for a preliminary injunction, ECF
No. 2.
DATED this 24th day of January 2025.
BY THE COURT:
______________________________
Charlotte N. Sweeney
United States District Judge
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