Parents of transgender child sue Yorba Linda private school — not only for discrimination, but for fraud

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In February 2017, Nikki Brar looked at a copy of her school portrait and tore it in half. "I hate myself," the 7-year-old told her mother.

The reason? Eight months earlier, Nikki had came out to her parents as transgender, making clear that she identified as a girl and wanted to be addressed as such.

But according to a lawsuit filed on the child's behalf Thursday, the Yorba Linda private school Nikki attended at the time refused to allow her to use a girl's name, girls uniform or girls restroom even though she no longer identified as a boy.

The lawsuit further alleges the principal of Heritage Oak Private School — a secular, for-profit institution — failed to address bullying Nikki faced because of her gender transition despite pleas for help from her parents, plaintiffs Priya Shah and Jaspret Brar.

A statement from the school's parent company, Nobel Learning Communities, said that Heritage Oak administrators had been attempting to respond "not hastily, but with deliberate care," consulting outside experts about how to communicate with young children about gender identity and attempting to discuss specific accommodations with Nikki's parents. The statement says Shah and Brar rejected these accommodations.

But the parents' lawsuit claims differently, quoting Heritage Oak principal Phyllis Cygan as telling Shah the school is a "conservative institution" and accommodating Nikki would "create an imbalance in our environment."

The parents' lawyer, Mark Rosenbaum, also disputes the claims that Heritage Oak administrators consulted outside experts or offered accommodations. Cygan allowed Nikki to grow out her hair, but said Nikki would have to be called by a boy's name and wear a boy's uniform, according to the civil complaint filed in Orange County Superior Court.

And — in a potential legal first — the lawsuit claims these actions not only constitute discrimination, but also fraud, since the school "emphatically markets itself as non-discriminatory, a bastion of diversity, and an educator of the 'whole child' … in order to induce paid enrollments."

"That turns out to be fraudulent in the case of Nikki," said Rosenbaum, the director of the Opportunity Under Law Project at the law firm Public Counsel. He was was aware of no other case involving transgender rights that merged claims of discrimination and fraud.

According to the complaint, Shah and Jaspret Brar decided to enroll Nikki in Heritage Oak in April 2016. The school had been recommended by some of their "liberal-minded" friends. There were no signs the school was a "conservative institution." A diversity presentation at the school's welcome night "fortified Priya and Jaspret's belief that the school was the right choice for their child."

From a young age, Nikki had always preferred clothes, toys and activities stereotypically associated with girls; her parents had "tried to present gender as a spectrum," according to the lawsuit. But in June 2016, Nikki definitively told Shah: "Mumma, I'm a girl. I want to be called a girl."

When Nikki's parents informed the school and inquired about allowing Nikki to wear a girl's uniform, Rosenbaum said the school, at first, "stonewalled" them, offering no definitive responses until January 2017.

At that point, the complaint said, Cygan refused the parents' requests, saying Nikki could use a staff restroom, but would still be called by the boy's name "Nikash," referred to with male pronouns and be treated in all other respects as a boy.

Shah and Brar allege Cygan refused to step in to stop bullying from other boy's in Nikki's class, including, the suit says, Cygan's own son.

When Nikki's teacher — whom the complaint says "warmly supported" Nikki's transition — suggested using a family night to educate parents on transgender children in an effort to curtail the bullying, the suit alleges "the administrator responsible for the elementary grades said he did not believe that they would be able to hold that kind of event on campus because he did not think Mrs. Cygan would approve."

Cygan is named as a defendant in the lawsuit alongside Kate Taylor, an executive of Nobel Learning Communities.

"We strive to meet the needs and wellbeing of all children in our schools," a statement from the parent company read, "and have been able to accommodate the needs of other transgender students in older grades at Nobel Learning Community schools without incident."

"We were mindful in this instance," the statement continued, "of the need to support not just this 7-year-old, but other young children. We believed it was extremely important to respond, not hastily, but with deliberate care, to decide when and how to inform and educate our entire elementary school community of students, staff and parents about the mid-year change of gender identity expression of a young child."

The statement said Heritage Oak officials had offered "specific options as to a girl's uniform clothing and girl's hairstyle, as well as ceasing to use gender groups in physical education activities," and suggests the school had been willing to discuss more accommodations, but that Nikki's parents rejected those options.

"The statement that they were trying to work this out is false," Rosenbaum countered.

When presented with specific questions about Nobel's prepared statement and the veracity of claims in Shah and Brar's lawsuit, a spokeswoman for the company said they could not offer further comment.

Rosenbaum took issue with the notion that the school should need to consult with an outside expert to conclude a student's "gender identity is who you are and we will call you the name, and use the pronouns, and let you dress, and let you use the restroom that is consistent with your gender identity."

"That doesn't take months to figure out," he added. "We wouldn't accept that if it were race. We wouldn't accept that if it were religion. There's no reason we should accept that with respect to gender identity."

In their lawsuit, Shah and Brar said the school's refusal to honor Nikki's transition made school attendance a daily struggle. She hated her boy's uniform. She felt "her inner light" was "getting blocked by walls" in the school, the complaint says.

One day as Nikki's grandmother drove the child home from school, the complaint says, a report about suicide among college students began playing on the radio. Her grandmother turned off the radio, but not before Nikki noticed.

"What is suicide?" Nikki asked, according to the complaint.

"That evening," the complaint says, "Nikki asked her mother if someday, when she was bigger, she could 'suicide herself' too, because 'life is really hard.'"

In February 2017, not long after Nikki tore the photograph of herself in half, Shah and Brar withdrew her from Heritage Oak and homeschooled her the rest of the year.

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