A.H. v. Minersville Area Sch. Dist.

• Decision Date: 02 October 2019
• Docket Number: 3:17-CV-391
• Citation: 408 F.Supp.3d 536
• Parties: A.H., a minor, by her next friend and mother, Tracey Handling, Plaintiff, v. MINERSVILLE AREA SCHOOL DISTRICT, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

408 F.Supp.3d 536

A.H., a minor, by her next friend and mother, Tracey Handling, Plaintiff,

v.MINERSVILLE AREA SCHOOL DISTRICT, Defendant.

3:17-CV-391

United States District Court, M.D. Pennsylvania.

Filed October 2, 2019

David L. Deratzian, Hahalis & Kounoupis, P.C., Bethlehem, PA, for Plaintiff.

Christopher J. Conrad, Nicole M. Ehrhart, Marshall Dennehey Warner Coleman and Goggin, Camp Hill, PA, for 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

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