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A.H. v. Minersville Area School District

United States District Court, M.D. Pennsylvania

October 2, 2019

A.H., a minor, by her next friend and mother, Tracey Handling, Plaintiff,
v.
MINERSVILLE AREA SCHOOL DISTRICT, Defendant.

          MEMORANDUM OPINION

          ROBERT D. MARIANI UNITED STATES DISTRICT JUDGE.

         I. Introduction and Procedural History

         This case arises out of a claim that Defendant, Minersville Area School District, prohibited Plaintiff, A.H., a transgender girl attending Minersville Elementary School, from using the girl's bathroom while at school or at school sponsored events. Plaintiff's two-count Amended Complaint asserts that the school district's “policy” of prohibiting A.H. from using the girl's bathroom while in first grade and at school-sponsored events, has violated A.H.'s rights under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq., (Count I) and the Equal Protection Clause of the Fourteenth Amendment (Count II). (Doc. 10).[1]

         Following the completion of discovery, Plaintiff filed a Motion for Partial Summary Judgment (Doc. 36) requesting summary judgment on all issues of liability and further requesting a permanent injunction. The Minersville Area School District also filed a Motion for Summary Judgment (Doc. 37), requesting summary judgment on all Counts of the Amended Complaint.

         The parties have fully briefed the motions and they are ripe for decision. For the reasons set forth below, the Court will deny Defendant's Motion for Summary Judgment (Doc. 37) and grant in part and deny in part Plaintiff's Motion for Partial Summary Judgment (Doc. 36).

         II. Statement of Undisputed Facts

         A.H. and the Minersville Area School District have each submitted a Statement of Material Facts (Docs. 36-2, 39) as to which they submit there is no genuine issue or dispute for trial, and each party has also submitted a Response to the moving party's Statement of Material Facts (Docs. 43, 42), with the result being that the following facts have been admitted except as specifically noted.[2]

         A.H. is a minor. At the time the present action was filed in 2017, A.H. was attending second grade in the Minersville Area School District. (Doc. 39, ¶ 1). Tracey Handling is A.H.'s mother. (Id. at ¶ 2).

         Defendant, Minersville Area School District (hereinafter “MASD” or “the District”), is a public school district in Schuylkill County, Pennsylvania. It is organized under the laws and constitution of the Commonwealth of Pennsylvania. MASD at all times hereto functioned, under color of state law, as the executive administrative agency responsible for the orderly administration of the public schools within the School District, including, but not limited to the Minersville Elementary School, and was the entity responsible for institution of administrative rules regarding the conduct of the day-to-day business of the school within the MASD, including creation and implementation of policy and procedure. (Doc. 36-2, ¶ 3; see also, Doc. 39, ¶ 3).

         Dr. Carl G. McBreen is the MASD Superintendent, a position that he has held since 2013. (Doc. 36-2, ¶ 4; Doc. 39, ¶ 4). Before becoming District Superintendent at Minersville, Dr. McBreen had been a high school principal from 2006-2013, assistant principal for the District from 2000-2006, and a teacher for nine years from 1990-1999. (Doc. 36-2, ¶ 5). Dr. McBreen was first certified as a District Superintendent in 2004. (Id. at ¶¶ 6-7).

         James Yacobacci is the Principal for the MASD elementary school and has held this position since 2011. (Doc. 36-2, ¶ 9; Doc. 39, ¶ 5). Prior to that, Mr. Yacobacci was the Assistant Principal for the District. (Doc. 36-2, ¶ 10).

         A.H. is a transgender girl. When A.H. was born, she was born a biological male, however she has a female gender identity. (Doc. 36-2, ¶ 1; Doc. 39, ¶ 6). A.H. lives every aspect of her life, in and out of school, consistently and with her gender identity different than her sex assigned at birth. (Doc. 36-2, ¶ 2). The District does not dispute that A.H. is transgender or that she has been diagnosed with Gender Dysphoria. (See e.g., Doc. 43, ¶¶ 36-40, 44-54, 58-73, 103-104, 132-142, 157-159).

         According to the Diagnostic & Statistical Manual V (“DSM-V”), diagnostic criteria for “Gender Dysphoria in Children” are as follows:

A. A marked incongruence between one's experienced/expressed gender and assigned gender, of at least 6 months' duration, as manifested by at least six of the following (one of which must be Criterion A1):
1. A strong desire to be of the other gender or an insistence that one is the other gender (or some alternative gender different from one's assigned gender).
2. In boys (assigned gender), a strong preference for cross-dressing or simulating female attire: or in girls (assigned gender), a strong preference for wearing only typical masculine clothing and a strong resistance to the wearing of typical feminine clothing.
3. A strong preference for cross-gender roles in make-believe play or fantasy play.
4. A strong preference for the toys, games, or activities stereotypically used or engaged in by the other gender.
5. A strong preference for playmates of the other gender.
6. In boys (assigned gender), a strong rejection of typically masculine toys, games, and activities and a strong avoidance of rough-and-tumble play; or in girls (assigned gender), a strong rejection of typically feminine toys, games, and activities.
7. A strong dislike of one's sexual anatomy.
8. A strong desire for the primary and/or secondary sex characteristics that match one's experienced gender.
B. The condition is associated with clinically significant distress or impairment in social, school, or other important areas of functioning.

(Doc. 36-4, Ex. B, DSM-V, at 452).

         When A.H. first enrolled in kindergarten in the District in the 2014-2015 school year, she was enrolled as a biological male. (Doc. 39, ¶ 7). However, at some point during kindergarten, A.H. received a clinical diagnosis of gender dysphoria. (Id. at ¶ 8). According to Mrs. Handling, she notified the District of A.H.'s diagnosis “[p]robably pretty much right when it happened”. (Dep. of T. Handling, at 25). At that time, she “[e]xplain[ed] to [Mr. Yacobacci and Dr. McBreen] that [A.H.] want[ed] to be a girl” and asked whether it was “okay to allow [A.H.] to dress in full girl uniform”, to which she was told yes. (Id. at 25-26).

         A.H.'s transition specifically happened mid-year of A.H.'s kindergarten year, i.e., January 2015. (Doc. 39, ¶ 11). A.H.'s birth certificate was also formally changed from male to female. (Id. at ¶ 12). At no time did anyone in the District resist or voice objection to the transition and at all times A.H. was treated as a female, the gender with which she identifies. (Id. at ¶ 13). A.H. was also permitted to dress however she desired, as long as it was consistent with the school dress code (regardless of male or female dress) and faculty immediately began using her chosen name of A.H. (Id. at ¶¶ 14, 16). (See also, Doc. 36-2, ¶ 27).

         During A.H.'s kindergarten year, restroom use was not an issue since each kindergarten classroom contained a single-user, unisex restroom. (Doc. 39, ¶ 17; see also, Doc. 36-2, ¶ 74).

         On May 27, 2015, near the end of A.H.'s kindergarten year, A.H. attended a school field trip to the Lehigh Valley Zoo. (Doc. 36-2, ¶ 75; Doc. 39, ¶ 21). Mrs. Handling did not volunteer to chaperone this field trip. (Doc. 39, ¶ 22; Doc. 42, ¶ 22). Mrs. Handling could not remember talking to anybody before the field trip about any restroom issues and she did not contact the Lehigh Valley Zoo to inquire as to any restroom policies and/or availability of restrooms. (Doc. 39, ¶¶ 23, 24; Doc. 42, ¶¶ 23, 24). Nonetheless, the District, without any prompting from Mrs. Handling, attempted to research family restrooms and their availability at the Zoo prior to the trip. (Doc. 39, ¶ 25). However, neither Dr. McBreen, Principal Yacobacci nor the classroom teacher, Ms. Schuster, informed either A.H. or her parents about any decision as to what bathroom A.H. could use on the field trip. (Doc. 36-2, ¶ 93).

         According to Mr. Yacobacci, he and Dr. McBreen decided that “in the school and the school sanctioned event, [ ] the child should use a private and/or unisex bathroom.” (Dep. of Yacobacci, at 64). If there was not a unisex or private bathroom available at a school sanctioned event, Mr. Yacobacci, in consultation with Dr. McBreen, informed Ms. Schuster to have A.H. “use the men's bathroom, but treat it as a private bathroom by not allowing anyone to come in for those few minutes.” (Id. at 65). Mr. Yacobacci explained that he “didn't want a situation that could endanger A.H., because there's other people in the public who would be going to the bathroom”, that he “also wanted again to protect the privacy rights of all students”, and that his “concern was that someone else in the bathroom may identify her as a biological male and create issues that could create a safety concern for A.H.” (Id. at 66, 67). Mr. Yacobacci felt that “on the guidance that we had available, which was none, that that would be the best decision.” (Id. at 81). Mr. Yacobacci admitted that there was no guidance with respect to any other students' use of off-campus public restrooms. (Id. at 77-78).

         According to Dr. McBreen, with respect to the field trip to Lehigh Valley Zoo, he gave a “verbal directive to Mr. Yacobbaci, this is the way I want it handled.” (Dep. of McBreen, at 47). Dr. McBreen explained his reasoning as follows:

Q. How did you -- were you familiar at all in making this decision with what facilities were present?
A. No. Again, I have no control over public bathrooms, bathrooms that are outside. No. control over the public bathroom. But l got to be able to safeguard the children. I didn't care where the bathrooms were. I just knew that this was the procedure we were going to use on that particular day. . . .
Q. What concern did you have about letting A.H. use the bathroom of her choice?
A. Because in that particular time, there were many students again who knew she was a boy in that classroom. There were kids who knew she was [A*****]. Biologically she was a boy. By her going into -- they didn't know anything about the bathroom because the bathroom [in kindergarten] was in the classroom back at the home school.
Q. Right.
A. So when you go out in a public building, you go out into the public and you have a child who many perceive as being a boy going into a female bathroom, there may or may not be problems. Again, I wasn't going to take that chance. So I made the decision.

(Id. at 49-50). When questioned about the school district's interest in which bathroom A.H. was allowed to use in a public place, Dr. McBreen explained that it was his concern because he is

responsible for the safety, health and welfare of all of the students. This was a situation that was brand new to the district. It was also brand new to us. There were many - there were kids in that classroom who went to school with her, her classmates who knew that . . . A.H. was a biological boy and changing her name from [A*****] to A.H. So I didn't want to call any concern to it. . . . I didn't want to call attention to the child because it would have been unwanted attention.

(Id. at 52-53) (see also, id. at 56-58 (further explaining his decision)).

         A.H. used the restroom one time on the Lehigh Valley Zoo field trip. (Doc. 39, ¶ 28). Plaintiff asserts that when she used this restroom, A.H. was required to use the men's bathroom when there were males present in the bathroom. (See e.g., Doc. 42, ¶ 29).[3]Nonetheless, it is undisputed that A.H. enjoyed the field trip to the zoo. (Doc. 39, ¶ 30; Doc. 42, ¶ 30).

         The District was not aware of any issues until contacted the next day by Mrs. Handling via email with complaints about the manner in which A.H.'s bathroom use was addressed. (Doc. 39, ¶ 31).

         A.H. finished the remainder of kindergarten without incident. (Doc. 39, ¶ 32).

         Prior to the start of first grade for the 2015-2016 school year, the District provided an opportunity for Mrs. Handling to meet with relevant administrators to address any concerns she had for the upcoming year concerning A.H.'s restroom use. (Id. at ¶ 33). A meeting was held and attended by, among others, Dr. McBreen, Mr. Yacobacci, Mrs. Handling, and Dr. Monika Parikh, A.H.'s pediatric psychologist. (Doc. 39, ¶ 34; see also, Doc. 36-2, ¶ 114). The purpose of the meeting was to have a conversation about ways to support A.H. at school and working together to address any needs A.H. may have. (Doc. 39, ¶ 35). Dr. Parikh's role, as A.H.'s treating psychologist, was to help the family collaborate and work with the school in supporting A.H. (Id. at ¶ 36).

         The parties dispute what was said during the meeting, and specifically whether Mrs. Handling objected to the District's suggestion that the school set aside unisex bathrooms for A.H.'s use in first grade. (See e.g., Doc. 36-2, ¶¶ 115-116, 120, 126; Doc. 43, ¶¶ 115-116, 120, 126; Doc. 39, ¶ 39; Doc. 42, ¶ 39) (see also, Dep. of McBreen, at 61-63; Dep. of Yacobacci, at 93-93; Dep. of T. Handling, at 50-51).

         Nonetheless, it is undisputed that during the Spring, 2015, meeting, McBreen commented to Mrs. Handling that there was no formal guidance (at least not initially) as to how best address her request for an accommodation (Doc. 39, ¶ 37; Doc. 42, ¶ 37), and that McBreen also stated that these individualized requests are handled on a case-by-case basis in the absence of any overarching formal guidance (Doc. 39, ¶ 38).

         In May 2016, during A.H.'s first grade year, she attended a school field trip to Hershey, PA. The field trip was announced in March, 2016. (Doc. 39, ¶ 40; Doc. 42, ¶ 40; Doc. 36-2, ¶ 152). Near the time the field trip was announced, Tracey Handling contacted Yacobacci regarding A.H.'s access to women's restrooms while attending that field trip. (Doc. 36-2, ¶ 143). At some time prior to the field trip, the District advised Mrs. Handling that a unisex/private bathroom would be available for A.H's use on the trip. (Doc. 39, ¶ 41; Doc. 42, ¶ 41; see also, Doc. 36-2, ¶ 154; Doc. 43, ¶ 154; Dep of Yacobacci (stating that “[a]t that time we still had the policy, the procedure of using the unisex bathrooms” and that he told Mrs. Handling “this is a school event, if [A.H. is] going on a school event, then there is at the Hershey Zoo a private bathroom.”)). Mrs. Handling objected to A.H. not being allowed to use the women's restroom and elected to accompany A.H. to the Zoo in order to ensure that A.H. could use the restroom corresponding to her gender identity. (Doc. 36-2, ¶¶ 153, 155). No. one from the District opposed or objected to this. (Doc. 39, ¶ 43). During that field trip, A.H. used the women's restroom facilities, accompanied by her mother, without incident. (Doc. 36-2, ¶ 156; see also, Doc. 39, ¶ 43).

         The parties agree that once the United States Department of Education and Department of Justice issued a formal "Guidance" letter in May 2016, which in pertinent part stated that transgender students should be permitted to use the restroom of the gender to which he or she identifies, MASD immediately permitted A.H. to use the female restroom or the unisex restroom, whichever she so desired. (Doc. 39, ¶ 44). Although Defendant asserts that this has been, and continues to be, the District's approach to accommodating A.H.'s restroom needs and that A.H. recently finished third grade in the District without incident (Doc. 39, ¶ 46), Plaintiff claims that the District has not promulgated any written policy that would assure that A.H. will continue to be granted this right in the future (Doc. 42, ¶ 46). Nonetheless, at this time A.H. continues to be permitted to use the restroom facility of her choice at school. (Doc. 39, ¶ 45). According to Mr. Yacobacci, the school does not have any present plans to withdraw the ability of A.H. to use the girls' bathrooms at the elementary school “unless we get a Federal directive.” (Dep. of Yacobacci, at 123-124). However, he did not believe that A.H.'s needs with respect to what will occur in junior high school or high school has been “addressed or even considered.” (Id. at 124).

         With respect to the creation of a policy statement or rule which would allow students to use the facilities associated with their gender identity, Dr. McBreen stated that he would not do so because “we have not received full direction yet from anybody still. Other than President Obama, no one has given us any type of direction as to what to put in that policy. Because that is one of the things that are safeguarded by is our policies. We have not received any information regarding that.” (Dep. of McBreen, at 71). Dr. McBreen further explained:

When I receive some type of direction, I will weigh that against the safety, health and welfare. And I'll make decisions as I collect the data. I do a lot of data driven decision making.
So I don't have any data. There's nobody that can offer me any data. This case, we're talking four years ago, and they still have not come out with any type of policy that makes sense. And PSBA is usually the first and I look every year to see if it's coming out and I get the updates, and nothing.

(Id. at 72).

         In approximately February of 2016, the District voluntarily agreed to receive education and training on various topics, including transgender student and bathroom policies offered by the Bradbury-Sullivan LGBT Community Center, to provide education and training to the District. (Doc. 39, ¶ 47).

         From 2014 to 2017, A.H. met with Dr. Monika Parikh a number of times. A.H. began treatment with Dr. Parikh on November 3, 2014, when she was listed as a 5-year-old male. (Doc. 36-2, ¶¶ 34, 35). A.H. continued treatment with Dr. Parikh between November 3, 2014 and January 13, 2015, and during this time, A.H.'s treatment included counselling for gender related concerns such as wearing traditionally female clothing, preference for traditionally female toys and accessories, and wanting to be called by a traditionally female name. (Id. at ¶¶ 43, 44). On January 13, 2015, A.H., now age 6, was seen by Dr. Parikh. During this visit A.H. requested that her given name be changed on her birth certificate to a traditionally female name. (Id. at ¶¶ 45, 46).

         A.H. was seen again by Dr. Parikh on January 27, 2015. At that time, Dr. Parikh noted that “a diagnosis of Gender Dysphoria in Children will be given to reflect [A.H.]'s preference for traditionally female toys, clothes, etc.” (Doc. 36-2, ¶¶ 53, 54).

         On February 25, 2015, A.H. was seen by Dr. Parikh. As of this visit, A.H.'s name on her birth certificate had been changed to her current, female name. During this session, Dr. Parikh remarked on the observations that she and A.H.'s parents had made in A.H.'s improvement in mood and behaviors between sessions following increased self-expression and acceptance by school personnel for A.H. to wear traditionally female clothing to school as her uniform. (Doc. 36-2, ¶¶ 59, 63, 67). A.H. was also seen by Dr. Parikh on March 25, April 14, and May 26, 2015. (Id. at ¶¶ 68, 71, 103).

         A.H. was again seen by Dr. Parikh on September 23, 2015. During this session, Dr. Parikh noted discussions of previous concerns and problem-solved issues for future situations, such as field trips, and concerns related to school personnel having A.H. use the boy's bathroom during the end of the school year field trip. While Dr. Parikh noted that they “[d]eveloped a plan for future field trips through school including expectations for which bathroom she will use (boy or girl) and ensure that [A.H.] uses the bathroom by herself, ” Dr. Parikh's concern was “to not cause issues with other parents.” (Doc. 36-2, ¶¶ 132, 133, 134).

         A.H., now age 7, was seen by Dr. Parikh on February 22, 2016. During that session, A.H. and her parents related that A.H. was not satisfied using a gender-neutral bathroom and preferred to use the girl's bathroom. (Id. at ¶¶ 136, 137).

         A.H. was again seen by Dr. Parikh on May 23, 2016. (Id. at ¶ 157).

         Dr. Parikh transferred her care of A.H. to Dr. Laurissa Kashmir in a report dated September 19, 2017. (Id. at ¶ 159).

         A.H. has never missed a significant amount of time from school. Her attendance for any given year has not dropped below 90%. (Doc. 39, ¶ 50). Furthermore, A.H. has performed well academically. (Id. at ¶ 51).

         III. Standard of Review

         Through summary adjudication, the court may dispose of those claims that do not present a “genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). “As to materiality, . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record . . . or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). “Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912 (1993).

         However, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

In this case, the parties have filed cross-motions for summary judgment. According to the Third Circuit:

Cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.

Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008). Each movant must show that no genuine issue of material fact exists; if both parties fail to carry their respective burdens, the Court must deny the motions. See Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d Cir. 2008). When reviewing each cross-motion, the Court is still bound to view the evidence in the light most favorable to the non-movant. Fed.R.Civ.P. 56; United States v. Hall, 730 F.Supp. 646, 648 (M.D. Pa. 1990).

         IV. Analysis

         Plaintiff and Defendant have filed cross-motions for summary judgment (Docs. 36, 37). Defendant asserts that it is entitled to summary judgment in all respects. In contrast, Plaintiff asserts that she is entitled to summary judgment “on all issues of liability, and on the equitable remedy of a permanent injunction.” (Doc. 40, at 3).

         Count I of Plaintiff's Amended Complaint asserts that Minersville Area School District violated A.H.'s rights under Title IX by discriminating against her on the basis of sex as follows:

By adopting and/or enforcing a policy or practice prohibiting A.H., a transgender girl, from accessing and using female-designated restrooms or single-occupancy restrooms, Defendant MASD has discriminated against A.H. in her enjoyment of MASD's educational programs and activities by treating her differently from other female students based on her gender identity, the fact that she is transgender, and her nonconformity with sex stereotypes.

(Doc. 10, ¶ 104).

         Similarly, Court II of Plaintiff's Amended Complaint alleges a violation of the Fourteenth Amendment:

By enforcing a policy and/or practice of prohibiting A.H., a transgender girl, from accessing female designated restrooms at school or at school related functions, and requiring that she use male-designated restrooms or single-occupancy restrooms, Defendant has discriminated against A.H. in her enjoyment of MASD's educational programs and activities by treating her differently than other female students based on her gender identity, the fact that she is transgender, and her nonconformity to female stereotypes, thereby denying her the full participation in, benefits of, and right to be free from discrimination in the educational opportunities offered by MASD, on the basis of sex and transgender status, in violation of the Equal Protection Clause.

(Doc. 10, ¶ 113). As a result, Plaintiff asserts that the District's “policies and/or practices treat transgender students differently than other students who are similarly situated”, based on their gender (Doc. 10, ¶ 111; see also, id. at ¶¶ 132-134).

         In the Request for Relief, Plaintiff's Amended Complaint includes a request that the Court “[i]ssue preliminary and permanent injunctions[4] directing” MASD to take a number of actions relating to the treatment of A.H. at school and “at any school function”, to clarify its discrimination policies, and to provide additional training for administrators and school board members with respect to their “obligations” under Title IX and the Equal Protection Clause and the application of these laws to the rights of transgender and “gender nonconforming” students. (Doc. 10, at 23-24).

         Defendant asserts that “Plaintiff has failed to produce sufficient evidence to sustain a claim of sex discrimination in violation of Title IX . . . so that the District is entitled to judgment as a matter of law as to those claims [Count I]” and that “Plaintiff has failed to produce sufficient evidence to sustain a claim for violation of A.H.'s Equal Protection rights (Count II), such that the District is entitled to judgment as a matter of law.” (Doc. 37, ¶¶ 8, 9).

         In turn, Plaintiff asserts that she is entitled to summary judgment on both Counts as to the issue of liability because the District is in violation of Title IX as it “has failed to offer any legitimate reason other than sex” for its “policies” regarding A.H.'s bathroom use and that Defendant's “policies” deny A.H. equal protection as it treats her differently from the rest of the school students. (Doc. 40, at 18, 23).

         A. Count I - Title IX

         Title IX of the Education Amendments of 1972 provides, in relevant part, that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Although the only enforcement mechanism explicitly provided for in Title IX is administrative, see 20 U.S.C. § 1682, the Supreme Court has “recognized an implied private right of action under Title IX, ” and has “held that money damages are available in such suits, ” Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 639, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). “Title IX has no administrative exhaustion requirement and no notice provisions. Under its implied private right of action, plaintiffs can file directly in court, and can obtain the full range of remedies.” Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 254, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009) (internal citations omitted). Specifically, a private damages action under Title IX is not barred “where the funding recipient engages in intentional conduct that violates the clear terms of the statute.” Davis, 526 U.S. at 642 (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981)).

         “To establish a prima facie case of discrimination under Title IX, a plaintiff must allege (1) that he or she was subjected to discrimination in an educational program, (2) that the program receives federal assistance, and (3) that the discrimination was on the basis of sex.” Evancho v. Pine-Richland Sch. Dist., 237 F.Supp.3d 267, 295 (W.D. Pa. 2017); Johnson v. Univ. of Pittsburgh of Com. Sys. of Higher Educ., 97 F.Supp.3d 657, 674 (W.D.Pa. 2015); see also Bougher v. Univ. of Pittsburgh, 713 F.Supp. 139, 143-144 (W.D. Pa. 1989). To obtain damages as a result of the discrimination, a plaintiff must further establish that the discrimination was intentional. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005) (Since 1979, Supreme Court opinions “have consistently interpreted Title IX's private cause of action broadly to encompass diverse forms of intentional sex discrimination”)(emphasis added); Davis, 526 U.S. at 642-643 (an intentional violation of Title IX is capable of supporting a private damages action); Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 74-75, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) (limitations on private damages actions is not a bar to liability under Title IX where a funding recipient intentionally violates that statute). See also, Williams v. Pennridge Sch. Dist., ___ Fed.Appx. ___, 2019 WL 3430275 (3d Cir. 2019) (“The hallmark of [Title VI, Title IX, the Equal Protection Clause, and PHRA] claims is intentional discrimination”).

         In addition, Title IX “private damages actions are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue.” Davis, 526 U.S. at 640.[5] Damages in a Title IX action thus cannot be recovered where liability rests solely on principles of vicarious liability or constructive notice. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 288, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). Rather, “a central purpose of requiring notice of the [Title IX] violation ‘to the appropriate person' and an opportunity for voluntary compliance before administrative enforcement proceedings can commence is to avoid diverting education funding from beneficial uses where a recipient was unaware of discrimination in its programs and is willing to institute prompt corrective measures.” Id. at 289. “It would be unsound . . . for a statute's express system of enforcement to require notice to the recipient and an opportunity to come into voluntary compliance while a judicially implied system of enforcement permits substantial liability without regard to the recipient's knowledge or its corrective actions upon receiving notice.” Id. (emphasis in original).

         As applicable to the present action before this Court, although “Title IX prohibits discrimination based on sex in all educational programs that receive funds from the federal government[, ] . . . discrimination with regard to privacy facilities is exempt from that blanket prohibition.” Doe by & through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 533 (3d Cir. 2018). Instead, “[a]n institution ‘may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.' This exception is permissive - Title IX does not require that an institution provide separate privacy facilities for the sexes.” Id. (quoting 34 C.F.R. § 106.33). Nonetheless, “the use by students of school restrooms is part and parcel of the provision of educational services covered by Title IX.” Evancho, 237 F.Supp.3d at 295.

         A.1 - Defendant's Motion for Summary Judgment on Plaintiff's Title IX Claim

         Here, it is beyond dispute that MASD receives federal assistance, and therefore to satisfy her prima facie burden, plaintiff must only establish on summary judgment that she was subjected to discrimination in an educational program and that the discrimination was on the basis of sex.

         In support of its motion for summary judgment on Plaintiff's Title IX claim, MASD first argues that “the state of the law regarding the applicability of Title IX to transgender students' use of restroom facilities remains in flux.” (Doc. 38, at 5). Although not explicitly stated, such argument appears to address the requirement that “private damages actions are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue”, Davis, 526 U.S. at 640. Defendant further argues that, even assuming Title IX applies to the present action, the plaintiff “has failed to demonstrate that she was discriminated against by the District” (Doc. 38, at 8). Specifically, the District asserts that Plaintiff has failed to set forth any evidence that the District intentionally discriminated against A.H. (Id.). Because an evaluation of these arguments is significantly intertwined, the Court will address them together.

         On January 7, 2015, the Acting Deputy Assistant Secretary for Policy at the Department of Education issued a letter (“2015 Guidance”), and the Department of Education and Department of Justice subsequently issued a joint letter on May 13, 2016 (“2016 Guidance”). In particular, the May 13, 2016, letter “summarize[d] a school's Title IX obligations regarding transgender students and explain[ed] how the U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) evaluate[s] a school's compliance with these obligations.” See Dear Colleague Letter, U.S. Dep't of Justice & U.S. Dep't of Educ., (May 13, 2016), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf (“2016 Guidance”). The 2016 Guidance specified that Title IX's prohibition on sex discrimination in educational programs and activities “encompasses discrimination based on a student's gender identity, including discrimination based on a student's transgender status, ” and that, under Title IX and 34 C.F.R. § 106.33, “[a] school may provide separate [restroom and locker room] facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity.” Id.

         On February 22, 2017, citing to “significant litigation regarding school restrooms and locker rooms” as a result of the 2015 and 2016 Guidance, the Department of Education and the Department of Justice issued another letter “withdrawing the statements of policy and guidance reflected in” the 2015 and 2016 Guidance “in order to further and more completely consider the legal issues involved.” See Dear Colleague Letter, U.S. Dep't of Justice & U.S. Dep't of Educ., (February 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf (“2017 Guidance”). However, the letter cautioned that “this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.” Id.

         In addition to the aforementioned Department of Education and Department of Justice Guidance, the last four years have yielded an influx of cases and Court decisions involving the rights of transgender students to use the restroom corresponding to ...


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