Doe v. Boyertown Area Sch. Dist.

• Citation: 276 F.Supp.3d 324
• Decision Date: 25 August 2017
• Docket Number: CIVIL ACTION NO. 17–1249
• Parties: Joel DOE, a minor, BY AND THROUGH his guardians, John DOE and Jane Doe; Mary Smith; Jack Jones, a Minor, by and through his parents, John Jones and Jane Jones; and Macy Roe, Plaintiffs, v. BOYERTOWN AREA SCHOOL DISTRICT; Dr. Richard Faidley, in his official capacity as superintendent of the Boyertown Area School District; Dr. Brett Cooper, in his official capacity as principal; and Dr. E. Wayne Foley, in his official capacity as assistant principal, Defendants, and Pennsylvania Youth Congress Foundation, Intervenor–Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

276 F.Supp.3d 324

Joel DOE, a minor, BY AND THROUGH his guardians, John DOE and Jane Doe; Mary Smith; Jack Jones, a Minor, by and through his parents, John Jones and Jane Jones; and Macy Roe, Plaintiffs,

v. BOYERTOWN AREA SCHOOL DISTRICT; Dr. Richard Faidley, in his official capacity as superintendent of the Boyertown Area School District; Dr. Brett Cooper, in his official capacity as principal; and Dr. E. Wayne Foley, in his official capacity as assistant principal, Defendants,andPennsylvania Youth Congress Foundation, Intervenor–Defendant.

CIVIL ACTION NO. 17–1249

United States District Court, E.D. Pennsylvania.

Signed August 25, 2017

Cathy R. Gordon, Jacob Francis Kratt, Litchfield Cavo LLP, Pittsburgh, PA, Christiana Holcomb, Kellie M. Fiedorek, Alliance Defending Freedom, Washington, DC, Gary S. McCaleb, Alliance Defending Freedom, Scottsdale, AZ, Randall Luke Wenger, Jeremy L. Samek, Independence Law Center, Harrisburg, PA, for Plaintiff.

Michael I. Levin, David William Brown, Levin Legal Group PC, Huntingdon Valley, PA, for Defendants.

MEMORANDUM OPINION

EDWARD G. SMITH, J.

The current issue before the court—whether the court should issue a preliminary injunction prohibiting a school district from maintaining its practice that started in the 2016–17 school year of allowing transgender students to use the bathrooms and locker rooms of the sex to which they identify—involves intricate and genuine issues relating to, inter alia , the personal privacy of high school students, a school district's discretion and judgment relating to the conduct of students in its schools, the meaning of the word "sex" in Title IX, and the rights of all students to complete access to educational opportunities, programs, and activities available at school. The general issue of transgender persons' access to privacy facilities such as bathrooms has recently received nationwide attention, and the issue of transgender students' access to educational institutions' bathrooms and locker rooms aligning to their gender identity has spurred litigation with unsurprisingly inconsistent results. With regard to cases involving transgender students, they have generally centered on whether precluding transgender students from using facilities consistent with their gender identity violates those students' rights under the Equal Protection Clause of the Fourteenth Amendment or Title IX. And as to Title IX, which generally precludes public schools receiving federal financial assistance from discriminating "on the basis of sex," this has resulted in a debate as to whether "sex" refers to biological sex (which the plaintiffs in this case define as a person's classification as male or female at birth based on the presence of external and internal reproductive organs) or a broader and arguably more contemporary definition of sex that could include sex stereotyping or gender identity.

Here, the court is presented with four students, three who will be seniors for the upcoming 2017–18 school year and one student who recently graduated, claiming that the defendant school district's practice of allowing transgender students (who the plaintiffs choose to identify as "members of the opposite sex" rather than as transgender students) to access bathrooms and locker rooms consistent with their gender identity violates (1) their constitutional right to privacy under the Fourteenth Amendment, (2) their right of access to educational opportunities, programs, benefits, and activities under Title IX because they are subject to a hostile environment, and (3) their Pennsylvania common law right of privacy preventing intrusion upon their seclusion while using bathrooms and locker rooms. The plaintiffs not only raise concerns with being in privacy facilities with transgender students regardless of whether the transgender students actually view them in a state of partial undress, but they raise concerns with the possibility of viewing a transgender person in a state of undress or having a transgender person present to hear them while they are attending to their personal needs while in the bathroom. At bottom, the plaintiffs are opposed to the mere presence of transgender students in locker rooms or bathrooms with them because they designate them as members of the opposite sex and note that, inter alia , society has historically separated bathrooms and locker rooms on the basis of biological sex to preserve the privacy of individuals from members of the opposite biological sex.

The plaintiffs now seek a preliminary injunction which would require the school district to cease its practice and return to the prior practice of requiring all students to only use the privacy facilities corresponding to their biological sex. The plaintiffs have a heavy burden here because they are not seeking to preserve the status quo that has existed since the start of the 2016–17 school year and instead are seeking to have the school district cease its current practice.

The court has thoroughly reviewed all evidence in the record and has considered the parties' well-articulated arguments in support of their respective positions. After reviewing the entire record, the court finds that the plaintiffs are not entitled to preliminary injunctive relief because they have not shown that they are likely to succeed on the merits on any of their causes of action and they have failed to show irreparable harm. Accordingly, the court will deny the plaintiffs' motion for a preliminary injunction.

I. SUBJECT–MATTER JURISDICTION

The court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343, and 1367.¹

II. VENUE

Venue is proper pursuant to 28 U.S.C. § 1391(b)(2).²

III. PROCEDURAL HISTORY

The initial plaintiff in this matter, Joel Doe, a minor, by and through his guardians, John Doe and Jane Doe, commenced this action on March 21, 2017, by filing (1) a complaint against the defendants, Boyertown Area School District (the "School District"), Dr. Richard Faidley, in his official capacity, Dr. Brett Cooper, in his official capacity, and Dr. E. Wayne Foley, in his official capacity, and (2) a motion to proceed pseudonymously. Doc. Nos. 1–4. On April 3, 2017, Aidan DeStefano, who was then a senior at the Boyertown Area Senior High School, and the Pennsylvania Youth Congress Foundation ("PYC"), a youth-led, statewide LGBTQ advocacy organization, filed a motion to intervene in this litigation. Doc. No. 7.

On April 18, 2017, the plaintiff filed an amended complaint in which three new plaintiffs were added to this litigation: (1) Mary Smith, (2) Jack Jones, a minor, by and through his parents, John Jones and Jane Jones, and (3) Macy Roe. Doc. No. 8. In the amended complaint, the plaintiffs generally complain that the defendants' policy and practice of permitting transgender individuals (who are identified as members of the "opposite sex" instead of being identified as "transgender") to use restrooms, locker rooms, and shower facilities designated for the biological sex to which they identify violates the plaintiffs' "fundamental right to bodily privacy contrary to constitutional and statutory principles, including the Fourteenth Amendment, Title IX, invasion of seclusion [under Pennsylvania state law], and Pennsylvania's Public School Code of 1949, which requires separate facilities on the basis of sex."³ Amended Compl. at ¶¶ 1, 2, 20, 41. For relief, the plaintiffs seek, inter alia , (1) declarations that the defendants' policy and actions (a) violate their constitutional right to privacy, (b) violate the Pennsylvania School Code of 1949, (c) constitute an unlawful intrusion upon Joel Doe and Jack Jones's seclusion and bodily privacy rights, and (d) impermissibly burden their rights under Title IX to be free from discrimination on the basis of sex by creating a sexually harassing hostile environment, (2) an injunction "enjoining the District's policy and ordering the District to permit only females to enter and use the multi-user girls' private facilities, including locker rooms and restrooms, and only males to enter and use the multi-user boys' private facilities, including locker rooms and restrooms," (3) compensatory damages, and (4) costs and attorney's fees. Id. at 38–39.

With regard to the specific factual allegations pertaining to each plaintiff, Joel Doe alleges that he was a junior at the Boyertown Area Senior High School on or about October 31, 2016, and was changing in the boys' locker room for his mandatory physical education course. Id. at ¶¶ 10, 43, 50. While standing in his underwear and about to put on his gym clothes, he observed a "member of the opposite sex changing with him in the locker room." Id. at ¶ 50. This "member of the opposite sex" was "wearing nothing but shorts and a bra." Id.

Due to Joel Doe's "immediate confusion, embarrassment, humiliation, and loss of dignity," he "quickly put his clothes on and left the locker room." Id. at ¶ 51. Joel Doe, along with other classmates, then went to Dr. Foley, the assistant principal of the Boyertown Area Senior High School, to let him know what happened. Id. at ¶¶ 22, 52. When Joel Doe informed Dr. Foley that there had been a girl in the locker room, Dr. Foley indicated that although the legality of this was up in the air, students who mentally identified themselves with the opposite sex could choose the locker room and bathroom to use because their physical sex did not matter. Id. at ¶ 53. Dr. Foley also told Joel Doe that there was nothing he could do to protect him from this situation and that he needed to " ‘tolerate’ it and make it as ‘natural’ as he possibly [could]." Id. at ¶¶ 54–56.

The plaintiffs assert that this action "marginalized and shamed Joel Doe, and unlawfully attempted to coerce and intimidate [him] into accepting continuing violations of his bodily privacy." Id. at ¶ 62. They further assert that the School District's "directive to Joel Doe was that he must change with students of the opposite sex and make it as...