Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ.

• Citation: 97 F.Supp.3d 657
• Decision Date: 31 March 2015
• Docket Number: Civil Action No. 3:13–213.
• Parties: Seamus JOHNSTON, Plaintiff, v. UNIVERSITY OF PITTSBURGH OF the COMMONWEALTH SYSTEM OF HIGHER EDUCATION d/b/a University of Pittsburgh, Eric Kinsey, Mark A. Nordenberg, Jem Spectar, Matthew Updyke, Nancy Turner, Daniel W. Dunn, Paul J. Eash, Does 1 Through 10, Defendants.
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania

97 F.Supp.3d 657

Seamus JOHNSTON, Plaintiff
v.
UNIVERSITY OF PITTSBURGH OF the COMMONWEALTH SYSTEM OF HIGHER EDUCATION d/b/a University of Pittsburgh, Eric Kinsey, Mark A. Nordenberg, Jem Spectar, Matthew Updyke, Nancy Turner, Daniel W. Dunn, Paul J. Eash, Does 1 Through 10, Defendants.

Civil Action No. 3:13–213.

United States District Court, W.D. Pennsylvania.

Filed March 31, 2015.

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Howard H. Stahl, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, DC, Ilona M. Turner, Sasha Jean Buchert, Oakland, CA, Jesse R. Loffler, Mark Siegmund, Fried, Frank, Harris, Shriver & Jacobson LLP, New York, NY, for Plaintiff.

Martha Hartle Munsch, Kim M. Watterson, Reed Smith, Patrick T. Noonan, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION

KIM R. GIBSON, District Judge.

I. Introduction

This case arises from Plaintiff Seamus Johnston's allegations that Defendants discriminated against him based on his sex and his transgender status¹ by prohibiting him from using sex-segregated locker rooms and restrooms that were designated for men. Although the parties have submitted lengthy briefs and have advanced numerous arguments, this case presents one central question: whether a university, receiving federal funds, engages in unlawful discrimination, in violation of the United States Constitution and federal and state statutes, when it prohibits a transgender male student from using sex-segregated restrooms and locker rooms designated for men on a university campus. The simple answer is no.

Pending before the Court in this matter is Defendants' motion to dismiss (ECF No. 9) the second amended complaint (ECF No. 7) pursuant to Federal Rule of Civil Procedure 12(b)(6). Thus, the issue this Court must decide is whether Plaintiff has stated a cognizable claim of discrimination on the basis of sex under the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments.² The Court finds that Plaintiff has failed to allege a plausible claim for relief as a matter of law. Accordingly, and for the reasons explained below, the Court will GRANT Defendants' motion to dismiss.

II. Jurisdiction

The Court has jurisdiction over the federal constitutional and statutory claims pursuant to 28 U.S.C. §§ 1331, 1343 and 42 U.S.C. § 1983. The Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. Venue is proper under 28 U.S.C. § 1391(b) because a substantial portion of the events giving rise to the claims occurred in the Western District of Pennsylvania.

III. Background

Plaintiff alleges the following facts in his second amended complaint, which the

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Court will accept as true for the purpose of deciding the pending motion to dismiss. Plaintiff identifies as a transgender male. (ECF No. 7 ¶¶ 1, 18). According to Plaintiff, “although he was assigned the sex of female at birth, he is legally, socially, and medically recognized as a man.” (Id. ¶¶ 1, 18). Plaintiff understood his male gender identity³ at a very early age, informing his parents that he was a boy at age 9. (Id. ¶ 20). In May 2009, Plaintiff transitioned to living in accordance with his male gender identity and began holding himself out as a male in all aspects of life. (Id. ¶ 21).

Beginning in August 2010, Plaintiff underwent counseling related to his gender identity and was diagnosed by his psychotherapist with Gender Identity Disorder (“GID”).⁴ (Id. ¶ 22). In August 2011, Plaintiff began hormone treatment for his GID in the form of testosterone injections.⁵ (Id. ¶ 26).

Beginning in 2009, as part of Plaintiff's transition to living as a male, he “amended his identity documents and records to reflect his male gender identity.” (Id. ¶ 27). In 2010, Plaintiff obtained a common law name change to “Seamus Samuel Padraig Johnston.” (Id. ¶ 28). In October 2011, Plaintiff amended the gender marker to male on his Pennsylvania driver's license. (Id. ¶ 29). In July 2011, Plaintiff registered with the Selective Service. (Id. ¶ 30). In February 2012, Plaintiff amended the gender marker to male on his United States passport. (Id. ¶ 31). In November 2013, Plaintiff amended the gender marker to male in his Social Security record. (Id. ¶ 32).

Plaintiff attended the University of Pittsburgh at Johnstown (“UPJ” or “University”) as an undergraduate Computer Science major for five semesters from 2009 to 2011. (Id. ¶ 7). Plaintiff received an REB Commuter Scholarship, a four-year scholarship covering full tuition, fees, and books, which he maintained for the entire time he was enrolled at UPJ. (Id. ¶¶ 35–36).

When Plaintiff applied for admission to UPJ in March 2009, he listed his sex as “female” on his application form. (Id. ¶¶ 33–34). However, when Plaintiff began attending classes at UPJ in August 2009, and at all times thereafter, Plaintiff “consistently lived as male.” (Id. ¶¶ 37–38). In August 2011, Plaintiff requested that UPJ change the gender marker to male in his school records.⁶ (Id. ¶ 39). In the fall of 2011, Plaintiff presented UPJ with a

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notarized affidavit regarding his name change, and UPJ changed the name on his student records to “Seamus Samuel Padraig Johnston.” (Id. ¶¶ 40–41).

While enrolled as a student at UPJ, Plaintiff consistently used the men's restrooms on campus. (Id. ¶ 42). During the spring 2011 semester, Plaintiff enrolled in a men's weight training class, which was attended only by men. (Id. ¶ 43). Plaintiff used the men's locker room for the men's weight training class throughout the spring 2011 semester. (Id. ¶ 44). Plaintiff again enrolled in a men's weight training class for the fall 2011 semester, and again began using the men's locker room. (Id. ¶ 45). Plaintiff used the locker room approximately five times between the end of August and mid-September without incident. (Id. ).

However, on September 19, 2011, Plaintiff met with Teresa Horner, Executive Director of Health and Wellness Services at UPJ, who informed Plaintiff that he could no longer use the men's locker room. (Id. ¶¶ 46–47). Instead, Plaintiff agreed to use a unisex locker room at the Sports Center normally reserved for referees. (Id. ¶ 47). On September 26, 2011, Jonathan Wescott, UPJ Vice President of Student Affairs, informed Plaintiff that “he would be allowed to use the men's locker room if his student records were updated from female to male.” (Id. ¶ 50). On September 29, 2011, Marylin Alberter, UPJ Registrar, informed Plaintiff that, in order to change the sex designation on his student records, Plaintiff must provide either a court order or a new birth certificate reflecting Plaintiff's current gender. (Id. ¶¶ 51–52). On October 19, 2011, Plaintiff registered a complaint with Jem Spectar, UPJ President, to protest his exclusion from the men's locker room. (Id. ¶ 57). Spectar responded by a letter dated October 21, 2011, confirming that, in order for Plaintiff to have access to the men's locker room, he must officially change his gender in UPJ's records by presenting a court order or birth certificate. (Id. ¶ 58).

In October 2011, Plaintiff began reusing the men's locker room, using the locker room six times between October 24, 2011, and November 14, 2011, without incident. (Id. ¶ 59). On November 16, 2011, the campus police issued a citation to Plaintiff for disorderly conduct because he used the men's locker room. (Id. ¶ 60). Despite receiving this citation, Plaintiff continued to use the men's locker room. (Id. ¶ 61). On November 21, 2011, Plaintiff received a second citation for disorderly conduct for using the men's locker room. (Id. ¶ 62). During this confrontation, Campus Police Chief Kevin Grady informed Plaintiff that, if he continued to use the men's locker room, he would be arrested and taken into custody. (Id. ¶ 62). On November 28, 2011, Jacob W. Harper, Coordinator for the UPJ Office of Student Conduct and Conflict Resolution, issued an interim persona non grata against Plaintiff, barring him from the Sports Center due to his continued use of the men's locker room. (Id. ¶¶ 63, 65). Additionally, on November 21, 2011, Harper notified Plaintiff that disciplinary charges had been filed against him and that he was required to attend a disciplinary hearing on November 23, 2011, which was subsequently rescheduled for December 2, 2011. (Id. ¶ 64).

On November 28, 2011, Plaintiff again used the men's locker room, and Campus Police took Plaintiff into custody and issued another disorderly conduct citation. (Id. ¶ 66). On December 2, 2011, at a disciplinary hearing, Plaintiff was found guilty of three charges resulting from alleged violations of the Student Code of Conduct, and was instructed that he was

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not to use any male locker rooms or restroom facilities on campus. (Id. ¶ 68). As a result of the findings at the disciplinary hearing, several sanctions were imposed against Plaintiff, including a required counseling assessment, disciplinary probation for approximately one year, and exclusion from all male-designated campus facilities until Plaintiff graduated...