United States District Court, M.D. Pennsylvania
A.H., a minor, by her next friend and mother, Tracey Handling, Plaintiff,
MINERSVILLE AREA SCHOOL DISTRICT, Defendant.
D. MARIANI UNITED STATES DISTRICT JUDGE.
Introduction and Procedural History
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).
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
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).
Statement of Undisputed Facts
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.
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).
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,
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).
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 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).
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
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).
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
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,
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).
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).
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).
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
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
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)).
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).Nonetheless, it is
undisputed that A.H. enjoyed the field trip to the zoo. (Doc.
39, ¶ 30; Doc. 42, ¶ 30).
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).
finished the remainder of kindergarten without incident.
(Doc. 39, ¶ 32).
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).
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).
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,
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, ¶
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
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
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).
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).
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).
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).
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).
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).
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).
was again seen by Dr. Parikh on May 23, 2016. (Id.
at ¶ 157).
Parikh transferred her care of A.H. to Dr. Laurissa Kashmir
in a report dated September 19, 2017. (Id. at ¶
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).
Standard of Review
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
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).
“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
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).
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).
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
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).
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 ¶¶
Request for Relief, Plaintiff's Amended Complaint
includes a request that the Court “[i]ssue preliminary
and permanent injunctions 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).
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).
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).
Count I - Title IX
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
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”).
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. 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).
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.
- Defendant's Motion for Summary Judgment on
Plaintiff's Title IX Claim
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.
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.
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),
(“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.
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),
(“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.
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 ...