JOHNSTON v. UNIVERSITY OF PITTSBURGH OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION et al
Filing
43
MEMORANDUM OPINION AND ORDER OF COURT granting 9 Motion to Dismiss for Failure to State a Claim, with prejudice, and as more fully stated in said Memorandum Opinion and Order of Court. The Clerk of Court shall mark this case closed. Signed by Judge Kim R. Gibson on 3/31/2015. (dlmb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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
JUDGE KIM R. GIBSON
MEMORANDUM OPINION
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.
1
As will be explained below, Plaintiff was born a female but identifies as a transgender male.
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
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
Because the Court dismisses both of Plaintiff’s federal question claims, the Court will decline to
exercise jurisdiction over Plaintiff’s state law claims and thus will not discuss those claims in this
memorandum opinion.
2
2
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
Plaintiff avers, “Gender identity is a person’s deeply rooted understanding of oneself as male or
female. Gender identity is typically established at a very early age and cannot be changed.” (ECF
No. 7 ¶ 19).
3
“Gender identity disorder is most simply described as an individual’s confusion or discomfort
about his or her sexual status as a biological male or female.” Farmer v. Hawk-Sawyer, 69 F. Supp.
2d 120, 122 (D. D.C. 1999) (discussing clinical definition and diagnosis criteria for GID). In the fifth
edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (2013), which was
released in May 2013, the American Psychiatric Association replaced the diagnostic name “gender
identity disorder” with “gender dysphoria,” defining gender dysphoria as a diagnosis for “people
whose gender at birth is contrary to the one they identify with.” See Gender Dysphoria Fact Sheet,
American Psychiatric Association, available at http://www.dsm5.org/Documents/Gender%20
Dysphoria%20Fact%20Sheet.pdf.
4
As Plaintiff explains in his second amended complaint, “Testosterone causes development of
male secondary sex characteristics, including increased muscle mass, deepening of the voice, and
facial and body hair growth.” (ECF No. 7 ¶ 26).
5
3
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 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
Plaintiff alleges that he “submitted the first of multiple unsuccessful inquiries to . . . amend the
gender marker on his school records.” (ECF No. 7 ¶ 39). It is unclear from the complaint whether
UPJ ever changed the gender marker to male in his school records. However, because Plaintiff
alleges that his “inquiry” was “unsuccessful,” it appears that UPJ did not change the gender
marker in his school records.
6
4
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,
5
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 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 from UPJ. (Id. ¶ 69).
Nevertheless, on December 7, 2011, Plaintiff used a men’s restroom in the
Wellness Center to change his clothes, and Campus Police confronted Plaintiff, informing
him that he was not to use any men’s restrooms on campus. (Id. ¶ 67). Then, on
6
December 15, 2011, Plaintiff used a men’s restroom in Biddle Hall, an academic building
on the UPJ campus. (Id. ¶ 70). Officer Matthew Updyke confronted Plaintiff, reminded
Plaintiff that he was not permitted to enter any men’s restrooms on campus, and
informed Plaintiff that he intended to file a complaint with the University Hearing Board.
(Id. ¶ 70). On December 20, 2011, Harper informed Plaintiff that, due to his use of the
men’s restrooms on December 7 and December 15, Plaintiff would be placed on interim
disciplinary suspension and barred under an interim persona non grata from all UPJ
property pending an adjudicatory hearing. (Id. ¶ 71). A disciplinary hearing was held on
January 24, 2012, before a panel of students, who found Plaintiff guilty of exhibiting
disorderly, lewd, or indecent behavior; failing to comply with lawful directions of a
University official; and entering University facilities without authorization. (Id. ¶ 72). As
a result, Plaintiff was expelled from UPJ and prohibited from accessing all UPJ property.
(Id. ¶ 72).
Following a “sanction justification review,” Dr. Gyure upheld Plaintiff’s
expulsion. (Id. ¶ 73). Similarly, the University Appeals Board reviewed the case and
upheld the disciplinary sanctions against Plaintiff. (Id. ¶¶ 74-75).
Due to his expulsion from UPJ, Plaintiff lost his scholarship.
(Id. ¶ 76).
Additionally, on December 2, 2011, the UPJ Campus Police filed a criminal complaint
with the District Attorney’s office, which charged Plaintiff with indecent exposure,
criminal trespass, and disorderly conduct. (Id. ¶ 77). On May 30, 2013, Plaintiff pled
guilty to the reduced charges of trespass and disorderly conduct and was sentenced to six
months’ probation and a fine of approximately $600. (Id. ¶ 78).
7
Following Plaintiff’s expulsion, the FBI investigated Plaintiff related to a series of
bomb threats made against the University of Pittsburgh. (Id. ¶ 83). Plaintiff alleges that
“the University gave [Plaintiff]’s name to the FBI in retaliation for exercising his right to
complain about the University’s discriminatory conduct.” (Id. ¶ 84). Plaintiff also alleges
that he suffers significant emotional distress as a result of Defendants’ discriminatory
conduct, including humiliation, stress, depression, and anxiety. (Id. ¶ 85). Further, and
among other things, Plaintiff alleges that he suffers from Post-Traumatic Stress Disorder,
requiring counseling treatment, as a result of Defendants’ conduct. (Id. ¶ 86).
Plaintiff filed a four-count pro se complaint in this Court on October 29, 2013. (ECF
No. 2). The matter was referred to United States Magistrate Judge Pesto, who screened
the complaint pursuant to 28 U.S.C. § 1915A. Magistrate Judge Pesto filed a report and
recommendation (ECF No. 3), recommending that the federal count of Plaintiff’s
complaint7 be dismissed for failure to state a claim upon which relief can be granted and
that the Court should decline to exercise jurisdiction over the remaining state law claims.
On November 26, 2013, this Court entered an order adopting the report and
recommendation and dismissing the case without prejudice to Plaintiff filing an amended
complaint. (ECF No. 5).
Plaintiff’s original complaint (ECF No. 1-1) alleged four counts: discrimination and retaliation
under Title IX; discrimination under the Pennsylvania Human Relations Act; discrimination under
Pennsylvania Fair Educational Opportunities Act; and common law breach of contract. Magistrate
Judge Pesto’s report and recommendation addressed only Plaintiff’s Title IX claim.
7
8
Plaintiff then filed an amended complaint (ECF No. 6) on January 8, 2014, and a
second amended complaint (ECF No. 7) on January 14, 2014.8 Thereafter, Defendants
filed the instant motion to dismiss (ECF No. 9) along with a brief in support. Plaintiff
filed a brief in opposition (ECF No. 19), and the parties filed responsive briefs (ECF Nos.
20, 23) and supplemental authority (ECF Nos. 35, 40, 41, 42).
On August 18, 2014,
Magistrate Judge Pesto recused himself from the case (ECF No. 24), after which this Court
held a status conference (see ECF Nos. 30, 34). On October 28, 2014, the Court held oral
argument on the motion to dismiss. (ECF Nos. 33, 38). The parties having completed
extensive briefing and argument, this matter is now ripe for disposition by this Court.
IV.
Standard of Review
Defendants have moved to dismiss Plaintiff’s second amended complaint
pursuant to Rule 12(b)(6). The Federal Rules of Civil Procedure require that a complaint
contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.”
Fed. R. Civ. P. 8(a)(2).
Rule 12(b)(6) allows a party to seek dismissal of a
complaint or any portion of a complaint for failure to state a claim upon which relief can
be granted.
Although the federal pleading standard has been “in the forefront of
jurisprudence in recent years,” the standard of review for a Rule 12(b)(6) challenge is now
well established. Fowler v. UPMC Shadyside, 578 F. 3d 203, 209 (3d Cir. 2009).
In determining the sufficiency of a complaint, a district court must conduct a twopart analysis. First, the court must separate the factual matters averred from the legal
In addition to the other claims alleged in the original complaint, the second amended complaint
includes an Equal Protection claim under the Fourteenth Amendment.
8
9
conclusions asserted. See Fowler, 578 F. 3d at 210. Second, the court must determine
whether the factual matters averred are sufficient to show that plaintiff has a “plausible
claim for relief.” Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The
complaint need not include “detailed factual allegations.” Phillips v. County of Allegheny,
515 F. 3d 224, 231 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)).
Moreover, the court must construe the alleged facts, and draw all inferences
gleaned therefrom, in the light most favorable to the non-moving party. See id. at 228
(citing Worldcom, Inc. v. Graphnet, Inc., 343 F. 3d 651, 653 (3d Cir. 2003)). However, “legal
conclusions” and “[t]hreadbare recitals of the elements of a cause of action . . . do not
suffice.” Iqbal, 556 U.S. at 678. Rather, the complaint must present sufficient “factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Sheridan v. NGK Metals Corp., 609 F. 3d 239, 263 n.27 (3d Cir.
2010) (quoting Iqbal, 556 U.S. at 678).
Ultimately, whether a plaintiff has shown a “plausible claim for relief” is a
“context specific” inquiry that requires the district court to “draw on its judicial
experience and common sense.”
Iqbal, 556 U.S. at 679.
The relevant record under
consideration includes the complaint and any “document integral or explicitly relied on in
the complaint.” U.S. Express Lines, Ltd. v. Higgins, 281 F. 3d 383, 388 (3d Cir. 2002) (citing
In re Burlington Coat Factory Sec. Litig., 114 F. 3d 1410, 1426 (3d Cir. 1997)). If a complaint
is vulnerable to dismissal pursuant to Rule 12(b)(6), the district court must permit a
curative amendment, irrespective of whether a plaintiff seeks leave to amend, unless such
10
amendment would be inequitable or futile. Phillips, 515 F. 3d at 236; see also Shane v.
Fauver, 213 F. 3d 113, 115 (3d Cir. 2000).
V.
Discussion
Plaintiff has asserted five claims for relief in his second amended complaint.
Count One asserts a claim against all Defendants pursuant to 42 U.S.C. § 1983, alleging
discrimination and retaliation in violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution.
(ECF No. 7 ¶¶ 92-98).
Specifically, Plaintiff alleges that “Defendants, without justification, treated Plaintiff
differently from other similarly situated students on the basis of sex, including his
transgender status and perceived failure to conform to gender stereotypes,” and that
Defendants retaliated against Plaintiff for asserting his constitutional right to be free from
discrimination based on sex. (Id. ¶¶ 93, 96). Count Two asserts a claim against all
Defendants pursuant to Title IX of the Education Amendments of 1972, 42 U.S.C. § 1681,
et seq., alleging discrimination and retaliation on the basis of sex in an education program
or activity receiving federal funds. (Id. at 16-17, ¶¶ 1-10).9 Count Three asserts a state law
claim against all Defendants for discrimination and retaliation on the basis of sex under
the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 995. (Id. at 17-18, ¶¶ 11-19).
Count Four asserts a state law claim against all Defendants for discrimination and
retaliation on the basis of sex under the Pennsylvania Fair Educational Opportunities Act,
In his second amended complaint, Plaintiff begins to renumber the allegations in his second claim
for relief. The Court will attempt to clearly distinguish the paragraphs of the complaint that are
redundantly numbered by referring to both the page number and the paragraph number of the
relevant allegation in the complaint.
9
11
24 Pa. Cons. Stat. § 5001, et seq. (Id. at 18-19, ¶¶ 20-27). Count Five asserts a state law
claim against the Defendant University for a common law breach of contract, alleging that
UPJ breached its nondiscrimination policy. (Id. at 19-20, ¶¶ 28-33). The Court will
separately evaluate Plaintiff’s claims for relief according to the Rule 12(b)(6) standard of
review as set forth above.10
A.
Equal Protection Claim
Plaintiff asserts his first claim for relief, a Fourteenth Amendment Equal Protection
claim, under 42 U.S.C. § 1983, which provides a remedy for the deprivation of a person’s
constitutional rights. See Dipippa v. Union Sch. Dist., 819 F. Supp. 2d 435, 439-40 (W.D. Pa.
2011). To state a claim for relief under § 1983, a plaintiff must allege both the violation of
a right secured by the Constitution or laws of the United States and that the alleged
violation was committed by a person acting under color of state law. See Davis v. Holder,
994 F. Supp. 2d 719, 726 (W.D. Pa. 2014); West v. Atkins, 487 U.S. 42, 48 (1988). Here, the
inquiry in dispute is whether Plaintiff has plausibly alleged that Defendants’ conduct
violated a constitutional or federal right. In his second amended complaint, Plaintiff
alleges that Defendants deprived him of his constitutional right to be free from
discrimination on the basis of sex under the Equal Protection Clause of the Fourteenth
Amendment to the Constitution when they prohibited him from using men’s restrooms
and locker rooms on the University’s campus.
Because Plaintiff has failed to allege a plausible federal claim for relief under either the Equal
Protection Clause or Title IX, the Court will decline jurisdiction over Plaintiff’s state law claims and
will not evaluate those claims.
10
12
The Equal Protection Clause prohibits a State from “deny[ing] to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. To
state a claim for sex discrimination under the Equal Protection Clause pursuant to § 1983,
a plaintiff must allege the existence of purposeful discrimination because of his sex. See
Epps v. City of Pittsburgh, 33 F. Supp. 2d 409, 414 (W.D. Pa. 1998) (citing Robinson v. City of
Pittsburgh, 120 F. 3d 1286, 1293 (3d Cir. 1997)). Thus, to establish a gender discrimination
claim under the Equal Protection Clause, a plaintiff must allege: (1) disparate treatment in
relation to other similarly situated individuals, and (2) that the discriminatory treatment
was based on sex. See Andrews v. City of Philadelphia, 895 F. 2d 1469, 1478 (3d Cir. 1990);
Wolfe v. Horn, 130 F. Supp. 2d 648, 654 (E.D. Pa. 2001); Hiester v. Fischer, 113 F. Supp. 2d
742, 746 (E.D. Pa. 2000). “Persons are similarly situated under the Equal Protection Clause
when they are alike in all relevant aspects.” Startzell v. City of Philadelphia, 533 F. 3d 183,
203 (3d Cir. 2008) (internal citations and quotation marks omitted); Etheredge v. Henry, No.
3:11-CV-2330, 2014 WL 59996, at *4 (M.D. Pa. Jan. 6, 2014). Nevertheless, “[t]he Equal
Protection Clause does not forbid classifications.
It simply keeps governmental
decisionmakers from treating differently persons who are in all relevant respects alike.”
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
“When reviewing a claim that [state] action violates the Equal Protection Clause,
the Court must first determine the correct standard of review.” Hunters United for Sunday
Hunting v. Pennsylvania Game Comm’n, No. 1:13-cv-01939, 2014 WL 2770228, at *4 (M.D. Pa.
June 18, 2014) (citing Donatelli v. Mitchell, 2 F.3d 508, 513 (3d Cir. 1993)). State action that
does not burden a fundamental right or target a suspect class will be upheld if it bears a
13
rational relation to some legitimate end. Ramsgate Court Townhome Ass'n v. W. Chester
Borough, 313 F. 3d 157, 160 (3d Cir. 2002); Doe v. Pennsylvania Bd. of Prob. & Parole, 513 F.
3d 95, 107 (3d Cir. 2008) (“If state action does not burden a fundamental Constitutional
right or target a suspect class, the challenged classification must be upheld if there is any
reasonably conceivable state of facts that could provide a rational basis for the
classification.”). On the other hand, “gender-based discriminations must serve important
governmental objectives and . . . the discriminatory means employed must be
substantially related to the achievement of those objectives.” Wengler v. Druggists Mut.
Ins. Co., 446 U.S. 142, 150 (1980).
In short, gender classifications are subject to
intermediate scrutiny. See United States v. Virginia, 518 U.S. 515, 531 (1996) (“Parties who
seek to defend gender-based government action must demonstrate an ‘exceedingly
persuasive justification’ for that action.”).
Plaintiff alleges that Defendants violated the Equal Protection Clause by
“treat[ing] Plaintiff differently from other similarly situated students on the basis of his
sex, including his transgender status and perceived failure to conform to gender
stereotypes.” (ECF No. 7 ¶ 93). Specifically, the complaint avers that “non-transgender
male students . . . were permitted to use the men’s locker room and restroom facilities on
campus” while Plaintiff “was denied access to the men’s locker rooms and restrooms.”
(Id. ¶¶ 94, 95). Additionally, the complaint alleges that Defendants retaliated against
Plaintiff for asserting his constitutional right to be free from discrimination based on sex.
(Id. ¶ 96).
14
Defendants argue that Plaintiff’s complaint fails to state a cognizable Equal
Protection Claim as a matter of law. (ECF No. 10 at 7). First, Defendants contend that
“transgender” is not a suspect classification under the Equal Protection Clause and that
rational basis review therefore applies. (Id.). According to Defendants, UPJ had a rational
basis in refusing to permit Plaintiff to use male locker rooms, showers, and bathrooms—
namely, to protect the privacy rights of students at UPJ. (Id.). Defendants assert that
students have a constitutional right to privacy, which includes “the right to disrobe and
perform personal bodily functions out of the presence of members of the opposite
biological sex.” (Id. at 7-8). Defendants also argue that, even if an intermediate standard
of review applies to the alleged sex-based discrimination in this case, UPJ’s conduct
would still pass constitutional muster. (Id. at 8). Specifically, Defendants assert that UPJ’s
conduct in refusing to permit Plaintiff, “a biological female, to disrobe and shower with
male students advance[s] an important purpose.” (Id.).
At the outset, the Court notes that society’s views of gender, gender identity, sex,
and sexual orientation have significantly evolved in recent years. Likewise, the Court is
mindful that the legal landscape is transforming as it relates to gender identify, sexual
orientation, and similar issues, especially in the context of providing expanded legal
rights. Within the context of these expanding rights and protections arises the profound
question of self-identify, as exemplified by this case. But, while this case arises out of a
climate of changing legal and social perceptions related to sex and gender, the question
presented is relatively narrow and the applicable legal principles are well-settled. At the
heart of this case are two important but competing interests.
15
On the one hand is
Plaintiff’s interest in performing some of life’s most basic and routine functions, which
take place in restrooms and locker rooms, in an environment consistent with his male
gender identity. On the other hand is the University’s related interest in providing its
students with a safe and comfortable environment for performing these same life
functions consistent with society’s long-held tradition of performing such functions in
sex-segregated spaces based on biological or birth sex. Additionally, the Court finds
controlling the unique contours under which this case arises. Namely, the context is a
public university, whose mission is primarily pedagogical, but which is also tasked with
providing safe and appropriate facilities for all of its students. With these considerations
in mind, the Court will apply the appropriate legal principles to the alleged facts of this
case.
First, neither the United States Supreme Court nor the Third Circuit Court of
Appeals has recognized transgender as a suspect classification under the Equal Protection
Clause. Accordingly, Plaintiff’s discrimination claim is reviewed under the rational basis
standard. This finding is consistent with numerous other courts that have considered
allegations of discrimination by transgender individuals. See, e.g., Etsitty v. Utah Transit
Auth., 502 F. 3d 1215, 1228 (10th Cir. 2007); Brown v. Zavaras, 63 F. 3d 967, 971 (10th Cir.
1995) (but cautioning that recent research concluding that sexual identity may be
biological suggests reevaluating the rule); Braninburg v. Coalinga State Hosp., No. 1:08-cv01457-MHM, 2012 WL 3911910, at *8 (E.D. Cal. Sept. 7, 2012) (“it is not apparent that
transgender individuals constitute a ‘suspect’ class”); Jamison v. Davue, No. S-11-cv-2056
WBS, 2012 WL 996383, at *3 (E.D. Cal. Mar. 23, 2012) (“transgender individuals do not
16
constitute a ‘suspect’ class, so allegations that defendants discriminated against him based
on his transgender status are subject to a mere rational basis review”); Kaeo-Tomaselli v.
Butts, No. 11-cv-00670 LEK, 2013 WL 399184, at *5 (D. Haw. Jan. 31, 2013) (noting the
plaintiff’s status as a transgender female did not qualify her as a member of a protected
class and explaining the court could find no “cases in which transgendered individuals
constitute a ‘suspect’ class”); Lopez v. City of New York, No. 05-cv-1032-NRB, 2009 WL
229956, *13 (S.D. N.Y. Jan. 30, 2009) (explaining that because transgender individuals are
not a protected class for the purpose of Fourteenth Amendment analysis, claims that a
plaintiff was subjected to discrimination based on her status as transgender are subject to
rational basis review).11
Plaintiff argues that Glenn v. Brumby, 663 F. 3d 1312 (11th Cir. 2011) and Smith v. City of Salem, 378
F. 3d 566 (6th Cir. 2004) recognize that discrimination based on gender nonconformity is prohibited
sex discrimination under the Equal Protection Clause and is therefore subject to heightened
scrutiny. (See ECF No. 19 at 27). However, these cases address gender stereotyping claims under
the Supreme Court’s Price Waterhouse decision. As explained in Glenn, “discriminating against
someone on the basis of his or her non-conformity constitutes sex-based discrimination under the
Equal Protection Clause.” Glenn, 663 F. 3d 1316. These cases do not treat transgender status, in
and of itself, as a suspect classification. Here, as is explained in more detail below under the
Court’s analysis of Plaintiff’s Title IX claim, Plaintiff has failed to allege a gender stereotyping
claim under Price Waterhouse. Further, as the cases cited above explain, Plaintiff cannot assert a
transgender status claim under the Fourteenth Amendment’s Equal Protection Clause.
11
Additionally, Plaintiff relies heavily on recent Title VII employment discrimination cases
involving transgender plaintiffs. However, strict reliance on Title VII employment discrimination
cases is unwarranted in this case for a number of reasons. See Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167, 175 (2005) (explaining that, because Title VII is a vastly different statute from Title IX,
certain comparisons between the two are of limited use). First, the context of this case is
necessarily different. Plaintiff’s claims arise on the basis of a university’s alleged discriminatory
policy in enforcing sex-segregated spaces on its campus, whereas many of the Title VII cases cited
by the parties arise in the context of an employer imposing adverse employment decisions in the
workplace. Likewise, this case is distinguishable from many of the cited Title VII cases on the facts
alleged. Here, the facts in the complaint present a narrow issue: whether a university receiving
federal funds unlawfully discriminates when it enforces the use of sex-segregated bathroom and
locker room facilities based solely on a student’s birth sex.
17
Nevertheless, even if a heightened standard of review were to apply, the result
would be the same as under rational basis review. Here, UPJ’s policy of segregating its
bathroom and locker room facilities on the basis of birth sex is “substantially related to a
sufficiently important government interest.” Glenn v. Brumby, 663 F. 3d 1312, 1316 (11th
Cir. 2011) (quoting Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446–47 (1985)).
Specifically, UPJ explained that its policy is based on the need to ensure the privacy of its
students to disrobe and shower outside of the presence of members of the opposite sex.
This justification has been repeatedly upheld by courts. See, e.g., Etsitty v. Utah Transit
Auth., 502 F. 3d 1215, 1224 (10th Cir. 2007) (the use of women’s public restrooms by a
biological, transgender male could result in liability for employer, and such a motivation
constitutes a legitimate, nondiscriminatory reason); Causey v. Ford Motor Co., 516 F. 2d 416
(5th Cir. 1975).12
The Supreme Court has acknowledged that not all classifications based on sex are
constitutionally impermissible: “The heightened review standard our precedent
establishes does not make sex a proscribed classification . . . Physical difference between
men and women, however, are enduring: ‘[t]he two sexes are not fungible; a community
made up exclusively of one [sex] is different from a community composed of both.’”
A Seventh Circuit case, considering claims by a female plaintiff of sexual harassment under Title
VII because her employer failed to provide separate restroom facilities for her, provides an
interesting contrast to the present case. DeClue v. Cent. Illinois Light Co., 223 F. 3d 434, 436 (7th Cir.
2000). While not on point with the issues in this case, the opinion is important for its discussion of
the “sensitivities” of providing private restroom facilities for women. Id. at 436. In a colorful
dissent, Judge Rovner briefly discusses the history of providing women with separate bathroom
facilities, and clearly explains the rational underpinning separate restroom facilities for men and
women. See id. at 437-40.
12
18
United States v. Virginia, 518 U.S. 515, 533 (1996) (quoting Ballard v. United States, 329 U.S.
187, 193 (1946)); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 75 (1998)
(“[T]he statute does not reach genuine but innocuous differences in the ways men and
women routinely interact with members of the same sex and of the opposite sex. The
prohibition of harassment on the basis of sex requires neither asexuality nor
androgyny . . .”).
As such, separating students by sex based on biological
considerations—which involves the physical differences between men and women—for
restroom and locker room use simply does not violate the Equal Protection Clause. Thus,
“while detrimental gender classifications by government often violate the Constitution,
they do not always do so, for the reason that there are differences between males and
females that the Constitution necessarily recognizes.” Michael M. v. Superior Court of
Sonoma Cnty., 450 U.S. 464, 478 (1981) (Stewart, J., concurring). It is within this legal
framework that the facts of this case must be evaluated.
Plaintiff also appears to argue that he was discriminated on the basis of his “male”
sex, not simply on his status as a transgender male. Plaintiff contends, the “complaint
alleges sex discrimination by Defendants.” (ECF No. 19 at 11). Plaintiff asserts that the
complaint alleges “acts of discrimination ‘because of his sex’ . . . [including] the
University’s refusal to permit [Plaintiff], a male transgender individual, access to facilities
consistent with his male gender.”
(Id.).
However, these allegations do not state a
cognizable claim for sex discrimination.
Many courts have defined the term “sex” in the context of the Equal Protection
Clause, as well as anti-discrimination statutes such as Title VII, as the biological sex
19
assigned to a person at birth.13 See, e.g., Frontiero v. Richardson, 411 U.S. 677, 686 (1973)
(“sex, like race and national origin, is an immutable characteristic determined solely by
the accident of birth”). The Seventh Circuit Court of Appeals has provided the following
definition for “discrimination based on sex” under Title VII, which this Court finds
instructive in defining sex discrimination under the Equal Protection Clause:
The phrase in Title VII prohibiting discrimination based on sex, in its
plain meaning, implies that it is unlawful to discriminate against women
because they are women and against men because they are men. The
words of Title VII do not outlaw discrimination against a person who has
a sexual identity disorder, i.e., a person born with a male body who
believes himself to be female, or a person born with a female body who
believes herself to be male; a prohibition against discrimination based on
an individual’s sex is not synonymous with a prohibition against
discrimination based on an individual’s sexual identity disorder or
discontent with the sex into which they were born.
Ulane v. E. Airlines, Inc., 742 F. 2d 1081, 1085 (7th Cir. 1984).14
While Plaintiff alleges that he is a “male,” the complaint also alleges that Plaintiff
was assigned the sex of “female” at birth. Importantly, Plaintiff has not alleged that he
In Michael M. v. Superior Court of Sonoma Cnty., Justice Rehnquist opined, “the Court has had
some difficulty in agreeing upon the proper approach and analysis in cases involving challenges to
gender-based classifications.” 450 U.S. 464, 468 (1981). He went on to explain that, underlying the
Court’s decisions in gender discrimination cases, “is the principle that a legislature may not make
overbroad generalizations based on sex which are entirely unrelated to any differences between
men and women or which demean the ability or social status of the affected class. But because the
Equal Protection Clause does not demand that a statute necessarily apply equally to all persons or
require things which are different in fact . . . to be treated in law as though they were the same, this
Court has consistently upheld statutes where the gender classification is not invidious, but rather
realistically reflects the fact that the sexes are not similarly situated in certain circumstances. As
the Court has stated, a legislature may ‘provide for the special problems of women.’” 450 U.S. 464,
469 (1981) (citations and quotations omitted).
13
The Court recognizes that other courts have declined to follow the definition articulated in Ulane.
See, e.g., Smith v. City of Salem, Ohio, 378 F.3d 566, 573 (6th Cir. 2004) (collecting cases). However,
because neither the Supreme Court nor the Third Circuit has addressed the precise issue, this
Court will follow the definition embraced by Ulane and its progeny.
14
20
has undergone a sex change. Thus, while Plaintiff might identify his gender as male, his
birth sex is female. It is this fact—that Plaintiff was born a biological female, as alleged in
the complaint—that is fatal to Plaintiff’s sex discrimination claim. Regardless of how
gender and gender identity are defined, the law recognizes certain distinctions between
male and female on the basis of birth sex. Thus, even though Plaintiff is a transgender
male, his sex is female, a fact alleged in Plaintiff’s complaint and a fact that has legal
significance in light of Plaintiff’s discrimination claim.
Plaintiff alleges that he is
“medically” a male, but provides no further averments to support that assertion.
Nevertheless, the complaint alleges two facts that belie his assertion that his sex—as
distinct from his gender—is male. First, Plaintiff alleges that he was assigned the sex of
female at birth. To further this point, Plaintiff alleges that he did not become aware of his
male gender identity until he was 9, and he did not start presenting as a male until
sometime later, around the time he matriculated as a student at UPJ. Similarly, based on
the allegations in the complaint, it is reasonable to infer that Plaintiff’s birth certificate
indicates that he is a female. Likewise, the complaint does not allege that Plaintiff has
undergone any kind of sex reassignment surgery.
Second, according to the complaint, when plaintiff applied to UPJ, he stated that
he was a female. Likewise, the complaint alleges that Plaintiff did not comply with UPJ’s
procedures to update his school records to reflect that his sex is male rather than female.
Thus, while Plaintiff alleges that he has held himself out as “male” at all relevant times, he
also alleges that, when he applied to UPJ, he stated that he was a female and that he has
failed to provide the school with requested documentation, consistent with UPJ’s policy,
21
to change the school records to reflect that his sex is male rather than female. For these
reasons, Plaintiff has failed to allege that he was discriminated against because of his sex.
Accordingly, Plaintiff has failed to state a cognizable claim for relief under the Equal
Protection Clause of the Fourteenth Amendment, and Count I of his complaint will
therefore be dismissed.
B.
Title IX Claim
Next, the Court will address Plaintiff’s claim for discrimination and retaliation in
violation of Title IX of the Education Amendments of 1972, 42 U.S.C. § 1681, et seq. (“Title
IX”). According to the complaint, Defendants discriminated against Plaintiff in violation
of Title IX “because of his sex, including his transgender status and his perceived failure
to conform to gender stereotypes.” (ECF No. 7 at 17, ¶ 7; ECF No. 19 at 11). Thus, the
complaint alleges that Defendants discriminated against Plaintiff both on the basis of his
transgender status and on his perceived gender nonconformity, and that such
discrimination violates Title IX’s prohibition of discrimination on the basis of sex. (ECF
No. 19 at 26).
Specifically, the complaint avers that, while “non-transgender male
students . . . were permitted to use the men’s locker room and restroom facilities on
campus,” Plaintiff “was singled out and denied access to the men’s locker rooms and
restrooms.”
(ECF No. 7 at 17, ¶¶ 5-6).
Additionally, the complaint alleges that
Defendants retaliated against Plaintiff for asserting his statutory right to be free from
discrimination based on sex. (Id. at 17, ¶ 8).
22
Defendants argue that Plaintiff’s complaint fails to state a cognizable claim for
relief under Title IX as a matter of law. (ECF No. 10 at 9). Defendants first argue that
Plaintiff cannot assert a transgender status claim because the plain language of Title IX
does not prohibit discrimination on the basis of gender identity.
(Id.).
Defendants
contend that, while Title IX prohibits discrimination in education programs on the basis of
sex, the statute does not mention gender identity, gender expression, or gender transition.
(Id.). Additionally, Defendants point to the legislative history of the statute, arguing that
“the intent of Congress in enacting Title IX was to open up educational opportunities for
girls and women in education,” and asserting that “[g]ender identification, of whatever
description, is not equivalent to ‘sex’ as that term is used in the statute or the regulations.”
(Id. at 9-10). Second, Defendants argue that Plaintiff’s allegations do not constitute “sex
stereotyping” under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
Having carefully reviewed the relevant language of Title IX and the applicable
case law, and having considered the erudite arguments of counsel, the Court finds that
Plaintiff has failed to state a cognizable claim for discrimination under Title IX. Simply
stated, Plaintiff has not alleged facts showing that Defendants unlawfully discriminated
against him on the basis of sex in violation of Title IX. Specifically, the University’s policy
of requiring students to use sex-segregated bathroom and locker room facilities based on
students’ natal or birth sex,15 rather than their gender identity, does not violate Title IX’s
prohibition of sex discrimination.
This case, like other cases involving alleged discrimination against transgender individuals,
raises important, but difficult, questions of what is sex and what is gender, what are the differences
between sex and gender, and to what extent are sex and gender synonymous or interchangeable
15
23
Title IX prohibits sex discrimination in educational programs that receive federal
funding:
No 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
for purposes of federal statutes, such as Title IX. Black’s Law Dictionary defines “sex” as “[t]he
sum of the peculiarities of structure and function that distinguish a male from a female organism;
gender.” Black’s Law Dictionary, SEX (10th ed. 2014). Black’s also uses the terms “sex
discrimination” and “gender discrimination” interchangeably, defining “sex discrimination” as
“[d]iscrimination based on gender,” but also noting: “The terminology is gradually shifting.
Increasingly in medicine and sociology, gender is distinguished from sex. Gender refers to the
psychological and societal aspects of being male or female; sex refers specifically to the physical
aspects.” Black’s Law Dictionary, DISCRIMINATION (10th ed. 2014). Nevertheless, the 9th
Circuit Court of Appeals has opined, “under Price Waterhouse, ‘sex’ under Title VII encompasses
both sex—that is, the biological differences between men and women—and gender” and that, for
Title VII purposes, “the terms ‘sex’ and ‘gender’ have become interchangeable.” Schwenk v.
Hartford, 204 F. 3d 1187, 1202 (9th Cir. 2000).
The difficulty of linking sex and gender becomes remarkably apparent in a case, such as
this one, where an individual’s assigned birth sex is different from that individual’s gender
identity. See Sommers v. Budget Mktg., Inc., 667 F. 2d 748, 749, n.2 (8th Cir. 1982) (explaining, “[a]
transsexual has been described as an individual who is mentally of one sex but physically of the
other, or as one born with the anatomical genitalia of one sex but whose self-identity is of the other
sex”)(citations omitted). Under such circumstances, the individual is often “diagnosed with a
medical condition known as gender identity disorder (“GID”), which arises from a profound
divergence between an individual’s assigned birth sex and the person’s inner gender identity.”
Stacy v. LSI Corp., 544 F. App’x 93, 94-95 (3d Cir. 2013). Indeed, this gives rise to the generally
accepted definition for “transgender” as a person who “has a gender identity (i.e., one’s internal
sense of gender) that is different from the individual’s assigned sex at birth (i.e., the gender
designation listed on one’s original birth certificate).” Kimberley Tooley v. Van Buren Public Schools,
No. 2:14-cv-12466, ECF No. 60 at 7 (E.D. Mich. Feb. 20, 2015).
This Court will not attempt to sort out this perplexing difference in definitions. However,
the Court notes that, regardless of the interplay between the two concepts, there is a distinction
between birth sex and gender identity. For the purposes of this opinion, the Court will refer to
“birth sex” as an individual’s biological sex in the binary sense—either male or female—that is
assigned at birth, as reflected on that individual’s birth certificate, and typically assigned on the
basis of an individual’s genitalia. But, the Court recognizes the importance of numerous other
considerations in defining a person’s sex such as sex chromosomes, internal reproductive organs,
hormone concentrations, and other relevant indicators. Indeed, one district court has evaluated
three factors, “[b]ased on the standards of commonly accepted medical science,” to determine an
individual’s biological sex: “(1) phenotypic characteristics; (2) endogenous hormonal
characteristics; and (3) chromosomal characteristics.” Kastl v. Maricopa Cnty. Cmty. Coll. Dist., No.
02-cv-1531-PHX-SRB, 2006 WL 2460636, at *5 (D. Ariz. Aug. 22, 2006) aff’d, 325 F. App’x 492 (9th
Cir. 2009).
24
discrimination under any education program or activity receiving Federal
financial assistance.
20 U.S.C. § 1681(a); see Grove City Coll. v. Bell, 687 F. 2d 684, 687 (3d Cir. 1982) aff’d, 465
U.S. 555 (1984). While Title IX’s “only express enforcement mechanism, § 1682, is an
administrative procedure resulting in the withdrawal of federal funding from institutions
that are not in compliance . . . [the Supreme Court] has recognized an implied private
right of action.” Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255 (2009). Thus, “Title
IX provides a cause of action to battle discrimination based upon gender by educational
institutions which receive federal funding, and was intended to prevent the use of federal
resources to support gender discrimination.” Favia v. Indiana Univ. of Pennsylvania, 812 F.
Supp. 578, 584 (W.D. Pa. 1993) aff’d, 7 F.3d 332 (3d Cir. 1993) (citing Franklin v. Gwinnett
County Public Schools, 503 U.S. 60 (1992) and Cannon v. University of Chicago, 441 U.S. 677
(1979)). In addition to proscribing discrimination on the basis of sex, the statute prohibits
retaliation against a person who has complained of sex discrimination. See Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). To establish a prima facie case of
discrimination under Title IX, a plaintiff must allege (1) that he 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. See Bougher v. Univ. of Pittsburgh,
713 F. Supp. 139, 143-44 (W.D. Pa. 1989) aff’d, 882 F. 2d 74 (3d Cir. 1989).
As stated above, Title IX prohibits discrimination “on the basis of sex.”
The
parties dispute whether discrimination “on the basis of sex” applies to claims of
discrimination by transgender students. This issue is one of first impression in the Third
25
Circuit, and it does not appear that any federal courts have addressed the precise question
of whether a student can assert a claim for discrimination on the basis of his transgender
status under Title IX. Thus, the parties understandably resort to relying on cases in the
Title VII context to construct the appropriate framework to answer this question.
Defendants cite several cases holding that discrimination based on transgender status is
not discrimination “on the basis of sex” under Title VII. Plaintiff, on the other hand, cites
several cases holding that transgender individuals can allege a cognizable Title VII claim
for discrimination under a sex stereotyping theory.
1.
Transgender Status Claim
First, Title IX does not prohibit discrimination on the basis of transgender itself
because transgender is not a protected characteristic under the statute. The Court has
found no federal court case that has squarely decided this issue in the Title IX context.16
However, nearly every federal court that has considered the question in the Title VII
context has found that transgendered individuals are not a protected class under Title VII.
See, e.g., Etsitty v. Utah Transit Auth., 502 F. 3d 1215, 1221-22 (10th Cir. 2007); Ulane v. E.
Airlines, Inc., 742 F. 2d 1081, 1084 (7th Cir. 1984); Sommers v. Budget Mktg., Inc., 667 F. 2d
One case comes close. In Kastl v. Maricopa County Community College, the United States District
Court for the District of Arizona evaluated a transgender female’s claims of discrimination under
Title VII and Title IX and concluded, on a motion for summary judgment by the defendant, that the
plaintiff had failed to “meet her burden of establishing a prima facie case of discrimination because
she has provided no evidence that she was a biological female and member of a protected class
while she was employed by Defendant.” Kastl v. Maricopa Cnty. Cmty. Coll. Dist., No. 02-cv-1531PHX-SRB, 2006 WL 2460636, at *6 (D. Ariz. Aug. 22, 2006) aff’d, 325 F. App’x 492 (9th Cir. 2009).
Importantly, however, while the court found that plaintiff had failed to meet her burden of
demonstrating that she belonged to a protected class under either statute, the court did not
explicitly hold that transgender individuals are not a protected class under Title IX.
16
26
748, 750 (8th Cir. 1982); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F. Supp. 2d
653, 658 (S.D. Tex. 2008) (collecting cases); Sweet v. Mulberry Lutheran Home, No. IP02-0320C-H/K, 2003 WL 21525058, at *2 (S.D. Ind. June 17, 2003) (“discrimination on the basis of
sex means discrimination on the basis of the plaintiff’s biological sex, not sexual
orientation or sexual identity, including an intention to change sex”); but see Schroer v.
Billington, 577 F. Supp. 2d 293, 305 (D.D.C. 2008) (explaining that “discrimination based
on transsexuality . . . [is] a characteristic that, in and of itself, nearly all federal courts have
said is unprotected by Title VII,” but holding that the revocation of a job offer by an
employer because the applicant had transitioned from male to female constituted
discrimination “because of sex” in violation of Title VII).17 The Third Circuit has not
addressed the issue. The Court will briefly review the relevant Title VII cases.
In Smith v. City of Salem, Ohio, 378 F.3d 566, 568 (6th Cir. 2004), the Sixth Circuit presented a
unique, though confusing, alternative. The court explained that the plaintiff was “biologically and
by birth a male,” but that he was also “a transsexual and [had] been diagnosed with Gender
Identity Disorder.” Id. at 568. Thus, in evaluating Smith’s claim for discrimination, the court
concluded that “Smith is a member of a protected class. His complaint asserts that he is a male
with Gender Identity Disorder, and Title VII’s prohibition of discrimination ‘because of . . . sex’
protects men as well as women.” Id. at 570. Ultimately, however, the court rested its decision on
the basis that the plaintiff had alleged a claim for discrimination under the Price Waterhouse sex
stereotyping theory, and concluded that “a label, such as ‘transsexual,’ is not fatal to a sex
discrimination claim where the victim has suffered discrimination because of his or her gender
non-conformity.” Id. at 572, 575. Therefore, the court did not conclude that “transgender” is a
protected class under Title VII, but only that a male or female who is also transgender can assert a
sex stereotyping claim under Title VII for adverse employment actions that result from the
individual’s conformity to their gender identity rather than their biological or birth sex. Indeed,
the same year that the 6th Circuit issued its opinion in Smith, it affirmed, in an unpublished
opinion, a district court decision holding that “Title VII does not prohibit discrimination based on
an individual’s status as a transsexual,” in an employment discrimination case involving a
transgender women’s use of a men’s restroom. Johnson v. Fresh Mark, Inc., 98 F. App’x 461, 462 (6th
Cir. 2004).
17
27
In one of the first cases considering whether Title VII protects transgender
individuals, the Seventh Circuit, in Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1087 (7th
Cir. 1984), concluded that “Title VII is not so expansive in scope as to prohibit
discrimination against transsexuals.” Reviewing the plain language of the statute, the
court reasoned,
The phrase in Title VII prohibiting discrimination based on sex, in its
plain meaning, implies that it is unlawful to discriminate against women
because they are women and against men because they are men. The
words of Title VII do not outlaw discrimination against a person who has
a sexual identity disorder, i.e., a person born with a male body who
believes himself to be female, or a person born with a female body who
believes herself to be male; a prohibition against discrimination based on
an individual’s sex is not synonymous with a prohibition against
discrimination on an individual’s sexual identity disorder or discontent
with the sex into which they were born.
Ulane, 742 F. 2d at 1085. The court reviewed the legislative history to discern the intent of
Congress. Also, the Court noted that Congress had considered, but rejected, several later
attempts to amend Title VII to prohibit discrimination on the basis of sexual orientation.
As such, the court explained, Congress’s “rejection strongly indicates that the phrase . . .
prohibiting discrimination on the basis of sex should be given a narrow, traditional
interpretation, which would also exclude transsexuals.” Id. at 1086. Thus, the court
concluded, “if the term ‘sex’ as it is used in Title VII is to mean more than biological male
or biological female, the new definition must come from Congress.” Id. at 1087.
Similarly, the Eighth Circuit has concluded that “the word ‘sex’ in Title VII is to be
given its traditional definition, rather than an expansive interpretation. Because Congress
has not shown an intention to protect transsexuals, we hold that discrimination based on
28
one’s transsexualism does not fall within the protective purview of the Act.” Sommers v.
Budget Marketing, Inc., 667 F. 2d 748, 750 (8th Cir. 1982) (noting that it was not unmindful
of the problem facing the transgender plaintiff, but noting, on the other hand, the equally
important problems facing plaintiff’s employer in “protecting the privacy interests of its
female employees” particularly in regard to restroom usage).
In a recent transgender restroom usage case, the Tenth Circuit held that
discrimination based on an individual’s transgender status is not discrimination “because
of sex” under Title VII and that transgender individuals are not members of a protected
class under the Fourteenth Amendment’s Equal Protection Clause. Etsitty v. Utah Transit
Auth., 502 F. 3d 1215 (10th Cir. 2007). The court explained,
[D]iscrimination against a transsexual based on the person’s status as a
transsexual is not discrimination because of sex under Title VII. In
reaching this conclusion, this court recognizes it is the plain language of
the statute and not the primary intent of Congress that guides our
interpretation of Title VII. . . . [T]here is nothing in the [Congressional]
record to support the conclusion that the plain meaning of “sex”
encompasses anything more than male and female. In light of the
traditional binary conception of sex, transsexuals may not claim
protection under Title VII from discrimination based solely on their status
as a transsexual.
Id. at 1221-22 (but noting that “[s]cientific research may someday cause a shift in the plain
meaning of the term ‘sex’ so that it extends beyond the two starkly defined categories of
male and female”).
These cases, along with many others, make clear that Title VII does not provide an
avenue for a discrimination claim on the basis of transgender status. Similarly, Title IX’s
29
language does not provide a basis for a transgender status claim.18. On a plain reading of
the statute, the term “on the basis of sex” in Title IX means nothing more than male and
female, under the traditional binary conception of sex consistent with one’s birth or
biological sex. See Etsitty, 502 F. 3d 1222. The exclusion of gender identity from the
language of Title IX is not an issue for this Court to remedy. It is within the province of
Congress19—and not this Court—to identify those classifications which are statutorily
prohibited. See Ulane v. E. Airlines, Inc., 742 F. 2d 1081, 1086 (7th Cir. 1984) (“Although the
maxim that remedial statutes should be liberally construed is well recognized, that
concept has reasonable bounds beyond which a court cannot go without transgressing the
prerogatives of Congress. . . . For us to now hold that Title VII protects transsexuals
would take us out of the realm of interpreting and reviewing and into the realm of
legislating.”); see also Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 190 (2005) (Thomas,
Plaintiff argues that the Court should give little weight to “whatever ‘original intent’ may be
inferred” from the statutory language or legislative history of Title IX. (ECF No. 19 at 25). Plaintiff
asserts that, in determining the meaning of Title IX, any “resort to ‘plain language’ and legislative
intent is unavailing.” (ECF No. 19 at 11). The Court disagrees. It is true, antidiscrimination
statutes are to be liberally construed. See, Rabzak v. Berks Cnty., 815 F. 2d 17, 20 (3d Cir. 1987) (“an
anti-discrimination statute . . . should be liberally interpreted to effectuate the congressional
purpose of ending discrimination”). Nevertheless, it is well-settled that “every exercise of
statutory interpretation begins with an examination of the plain language of the statute. . . . When
the statute’s language is plain, the sole function of the courts . . . is to enforce it according to its
terms.” Murphy v. Millennium Radio Grp. LLC, 650 F. 3d 295, 302 (3d Cir. 2011) (quoting Alston v.
Countrywide Fin. Corp., 585 F. 3d 753, 759 (3d Cir. 2009)).
18
The issue of deconstructing sex-segregated bathrooms is a policy matter that is better suited for
Congressional consideration and deliberation. This approach has been successful in fighting
discrimination in other contexts, including the development of statutory provisions to meet the
needs of persons with disabilities under the Americans with Disabilities Act. See Jill D. Weinberg,
Transgender Bathroom Usage: A Privileging of Biology and Physical Difference in the Law, 18 Buff. J.
Gender, L. & Soc. Pol’y 147, 153 (2010) (“The most obvious panacea is to create statutory authority
in which emphases of accommodation and equality are moved to the forefront of lawmaking. This
framework has been employed in the context of disability antidiscrimination protections.”).
19
30
J., dissenting) (noting that Congress enacted Title IX pursuant to its spending power and
that “Congress must speak with a clear voice when it imposes liability on the States
through its spending power,” thus supporting a narrow interpretation of the statute’s
language regarding sex discrimination)
This Court’s narrow view of the meaning of the statutory term “sex” is also
supported by the legislative history and application of Title IX in this Circuit’s case law.
Congress’s purpose in enacting Title IX was to establish equal educational opportunities
for women and men in education. Lothes v. Butler Cnty. Juvenile Rehab. Ctr., 243 F. App’x
950, 955 (6th Cir. 2007). The Third Circuit has evaluated Title IX’s language related to
“sex” and has concluded that sex-segregated schools and programs may be
constitutionally permissible under the statute.
See, e.g., Vorchheimer v. Sch. Dist. of
Philadelphia, 532 F. 2d 880 (3d Cir. 1976) (holding that regulations establishing admission
requirements based on gender classification do not offend the Equal Protection Clause of
the United States Constitution). Importantly, the Third Circuit explained,
Race is a suspect classification under the Constitution, but the Supreme
Court has declined to so characterize gender. We are committed to the
concept that there is no fundamental difference between races and
therefore, in justice, there can be no dissimilar treatment. But there are
differences between the sexes which may, in limited circumstances,
justify disparity in law. As the Supreme Court has said: “(g)ender has
never been rejected as an impermissible classification in all instances.”
Vorchheimer, 532 F. 2d at 886-87 (quoting Kahn v. Shevin, 416 U.S. 351, 356 n.10 (1974)).
Thus, while Title IX was intended to provide equal educational opportunities for both
sexes, the statute does not necessarily prohibit sex-segregated spaces in educational
settings. As further support, the Third Circuit has recognized that Title IX authorizes
31
single-sex athletic teams in certain circumstances.
See, e.g., Williams v. Sch. Dist. of
Bethlehem, Pa., 998 F. 2d 168, 174 (3d Cir. 1993) (importantly noting that a determination of
whether equal opportunities are available for boys and girls in an athletic program “may
turn on whether there are real and significant physical differences between boys and girls
in high school”).
Additionally, this interpretation of Title IX is consistent with the application of
similar language in Title VII, as explained in the Court’s review of the applicable cases
above. See Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332, 381 (W.D. Pa. 2008)
(“Title IX freely borrows the jurisprudence of Title VII.”); Murray v. New York Univ. Coll. of
Dentistry, 57 F.3d 243, 249 (2d Cir. 1995) (“[I]n a Title IX suit for gender discrimination . . .
an educational institution may be held liable under standards similar to those applied in
cases under Title VII.”). See, e.g., Ulane v. E. Airlines, Inc., 742 F. 2d 1081, 1087 (7th Cir.
1984) (holding that the term “sex” as it is used in Title VII refers to nothing more than
“biological male or biological female”).
Finally, the Court finds particularly compelling that the regulations implementing
Title IX explicitly permit educational institutions subject to Title IX to provide separate
toilet, locker room, and shower facilities on the basis of sex:
A recipient 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.
34 C.F.R. § 106.33. The regulations implementing Title IX also provide that nothing in the
regulations “shall prevent a recipient from considering an employee’s sex in relation to
32
employment in a locker room or toilet facility used only by members of one sex.”
34 C.F.R. § 106.61. Indeed, the statute itself allows for sex-segregated living spaces:
Notwithstanding anything to the contrary contained in this chapter,
nothing contained herein shall be construed to prohibit any educational
institution receiving funds under this Act, from maintaining separate
living facilities for the different sexes.
20 U.S.C. § 1686. Thus, Title IX and its implementing regulations clearly permit schools to
provide students with certain sex-segregated spaces, including bathroom and locker room
facilities, to perform certain private activities and bodily functions consistent with an
individual’s birth sex.
The Court finds the conclusion of the Third Circuit in Vorchheimer—a case
involving both an Equal Protection Claim challenge and a Title IX challenge to sexsegregated schools—pertinent here, as modified to the facts and issues of this case:
The gravamen of plaintiff’s case is [his] desire to [use] a specific [restroom
or locker room] based on its particular appeal to [him]. [He] believes that
the choice should not be denied [him] because of an educational policy
with which [he] does not agree.
We are not unsympathetic with [his] desire to have an expanded freedom
of choice, but its cost should not be overlooked. If [he] were to prevail,
then all [sex-segregated restrooms and locker rooms] would have to be
abolished. The absence of [sex-segregated spaces] would stifle the ability
of the [University] to continue with a respected educational methodology.
It follows too that those students and parents who prefer an education
[with sex segregated restrooms and locker rooms] would be denied their
freedom of choice. . . .
It is not for us to pass upon the wisdom of segregating boys and girls in
[their use of restrooms and locker rooms]. We are concerned not with the
desirability of the practice but only its constitutionality. Once that
threshold has been passed, it is the [University’s] responsibility to
determine the best methods of accomplishing its mission.
33
Vorchheimer v. Sch. Dist. of Philadelphia, 532 F. 2d 880, 888 (3d Cir. 1976). In the case sub
judice, the University’s policy of separating bathrooms and locker rooms on the basis of
birth sex is permissible under Title IX and the United States Constitution.
2.
Sex Stereotyping Claim
Regarding Plaintiff’s sex stereotyping claim, Defendants argue that Plaintiff’s
claims must be evaluated under the framework of the Third Circuit’s precedents in Bibby
v. Coca Cola Bottling Co., 260 F. 3d 257 (3d Cir. 2001) and Prowel v. Wise Business Forms, Inc.,
579 F. 3d 285 (3d Cir. 2009).20 In Bibby, the Court considered whether the plaintiff had
presented evidence sufficient to support a claim of same-sex sexual harassment under
Title VII. Bibby, 260 F. 3d at 261. In evaluating the plaintiff’s claim for discrimination, the
Third Circuit first noted that Title VII does not prohibit discrimination based on sexual
orientation, but provides relief “only for discrimination because of sex.” Id. at 261 (noting
that “Congress has repeatedly rejected legislation that would have extended Title VII to
cover sexual orientation”). Thus, the court noted, in order to allege a claim for relief
under Title VII for same-sex harassment, the plaintiff must allege facts showing that the
harassment was because of sex. The court held that, while harassment on the basis of
sexual orientation has no place in our society, “Congress has not yet seen fit . . . to provide
protection against such harassment.” Id. at 265 (concluding that plaintiff’s claims for
While these cases involve sex stereotyping claims under Title VII, courts have also applied the
sex stereotyping analysis to Title IX cases. See, e.g., Rumble v. Fairview Health Servs., No. 14-cv-2037
SRN/FLN, 2015 WL 1197415, at *7 (D. Minn. Mar. 16, 2015) (“When analyzing Title IX, courts have
interpreted the term ‘sex’ to include ’individuals who are perceived as not conforming to gender
stereotypes and expectations.’”).
20
34
same-sex harassment failed to state a cognizable claim for discrimination on the basis of
sex under Title VII).
The court identified a variety of situations where same-sex harassment could be
considered discrimination “because of sex,” including where the harasser sexually desires
the victim, where there is no sexual attraction but where the harasser displays hostility to
the presence of a particular sex in the workplace, and where the harasser’s conduct was
motivated by a belief that the victim did not conform to the stereotypes of his or her
gender. Id. at 262. This third situation—where a harasser is acting to punish the victim’s
noncompliance with gender stereotypes—is based on the Supreme Court’s decision in
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
In Price Waterhouse, the Supreme Court held that a woman who was denied a
promotion because she failed to conform to gender stereotypes had a cognizable claim for
discrimination under Title VII because she was discriminated against “because of sex.”
The Court explained that “we are beyond the day when an employer could evaluate
employees by assuming or insisting that they matched the stereotype associated with
their group, for ‘[i]n forbidding employers to discriminate against individuals because of
their sex, Congress intended to strike at the entire spectrum of disparate treatment of men
and women resulting from sex stereotypes.’” Price Waterhouse, 490 U.S. at 251 (citations
omitted). The Court explained that it was impermissible for the plaintiff’s employer to
condition her promotion on such stereotypical factors as the plaintiff’s ability to “walk
more femininely, talk more femininely, wear make-up, have her hair styled, and wear
jewelry.” Id. at 268.
35
Likewise, in Prowel v. Wise Business Forms, Inc., the Third Circuit considered
whether a plaintiff had provided sufficient facts for his claim of gender stereotyping
under Title VII.
Relying on Bibby, the Court again noted that, to bring a claim for
discrimination under Title VII, the plaintiff must demonstrate that the discrimination was
because of sex and that sexual orientation claims, absent a showing that the harassment
was because of sex, are not cognizable under Title VII. Prowel, 579 F. 3d at 289. But, as
explained in Bibby, a plaintiff may prevail on a discrimination claim on the basis of sex
under a gender stereotyping theory as established in Price Waterhouse. To allege a gender
stereotyping claim, a plaintiff must show that his harasser was acting to punish his
noncompliance with gender stereotypes. Prowel, 579 F. 3d at 290 (finding evidence of
gender stereotyping harassment where plaintiff was harassed because he did not conform
to his employer’s vision of “how a man should look, speak, and act,” rather than
harassment based solely on his sexual orientation).
The Court will evaluate the facts alleged by Plaintiff in his complaint under the
Bibby and Prowel cases of this Circuit.21 Defendants contend that Plaintiff has failed to
allege sufficient facts to establish a sex stereotyping claim.
The Court agrees.
As
Plaintiff cites numerous cases discussing the meaning of “sex” under the framework of Title VII
claims and asserts that “on the basis of sex” should be understood to “encompass discrimination
based on gender nonconformity and transgender status.” (ECF No. 19 at 20) (citing Glenn v.
Brumby, 663 F. 3d 1312 (11th Cir. 2011); Smith v. City of Salem, 378 F. 3d 566 (6th Cir. 2004); Schwenk
v. Hartford, 204 F. 3d 1187 (9th Cir. 2000); Schroer v. Billington, 577 F. Supp. 2d 293 (D. D.C. 2008);
Mitchell v. Axcan Scandipharm, Inc., No. 05-cv-243, 2006 WL 456173 (W.D. Pa. Feb. 17, 2006)). The
cases cited by Plaintiff evaluate Title VII transgender discrimination claims under the rubric of the
Price Waterhouse gender stereotyping analysis. While these cases provide instructive analysis for
transgender discrimination claims under a gender stereotyping theory, the Court will apply the
Third Circuit analysis developed in Bibby and Prowel, and finds Plaintiff’s cited cases
distinguishable from the instant case on their facts.
21
36
explained in Bibby and Prowel, to state a cognizable claim for discrimination under a sex
stereotyping claim, a plaintiff must allege that he did not conform to his harasser’s vision
of how a man should look, speak, and act. Prowel, 579 F. 3d at 292. Sex stereotyping
claims are based on behaviors, mannerisms, and appearances. See, e.g., Glenn v. Brumby,
663 F. 3d 1312, 1318-19 (11th Cir. 2011) (reviewing cases and finding gender stereotypes to
include “wearing jewelry that was considered too effeminate, carrying a serving tray too
gracefully, or taking too active a role in child-rearing”); Smith v. City of Salem, Ohio, 378 F.
3d 566, 572 (6th Cir. 2004) (explaining that plaintiff’s “complaint sets forth the conduct
and mannerisms . . . [that] did not conform with his employers’ and co-workers’ sex
stereotypes of how a man should look and behave,” including plaintiff’s mannerisms,
appearance, conduct, and behaviors); Mitchell v. Axcan Scandipharm, Inc., No. 05-cv-243,
2006 WL 456173, at *2 (W.D. Pa. Feb. 17, 2006) (finding that plaintiff had alleged facts
showing that his failure to conform to sex stereotypes of how a man should look and
behave—in other words, his non-conforming behavior and appearance—were the catalyst
behind defendant’s discriminatory actions).
Here, Plaintiff has not alleged that Defendants discriminated against him because
of the way he looked, acted, or spoke. Instead, Plaintiff alleges only that the University
refused to permit him to use the bathrooms and locker rooms consistent with his gender
identity rather than his birth sex. Such an allegation is insufficient to state a claim for
discrimination under a sex stereotyping theory. See, e.g., Eure v. Sage Corp., -- F. Supp. 3d -, No. 5:12-cv-1119-DAE, 2014 WL 6611997, at *6 (W.D. Tex. Nov. 19, 2014) (“courts have
been reluctant to extend the sex stereotyping theory to cover circumstances where the
37
plaintiff is discriminated against because the plaintiff’s status as a transgender man or
woman, without any additional evidence related to gender stereotype non-conformity”);
Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir. 2007) (Price Waterhouse does not
require “employers to allow biological males to use women’s restrooms.
Use of a
restroom designated for the opposite sex does not constitute a mere failure to conform to
sex stereotypes.”); Johnson v. Fresh Mark, Inc., 337 F. Supp. 2d 996, 1000 (N.D. Ohio 2003)
aff’d, 98 F. App’x 461 (6th Cir. 2004) (finding no discrimination where employer did not
require plaintiff to conform her appearance to a particular gender stereotype, but instead
only required plaintiff to conform to the accepted principles established for genderdistinct public restrooms).
Indeed, Plaintiff alleges that the University permitted him to live in conformance
with his male gender identity in all material respects, with the one exception of the
University’s policy regarding bathroom and locker room usage. Plaintiff alleges that he
presented as a male, and he does not allege that he was ever harassed or discriminated
against by the University because he dressed, spoke, or behaved like a man, or because he
did not dress, act, or speak like a woman. Likewise, Plaintiff avers that he was permitted
to enroll in a men’s weight training course; the University accepted his name change to a
traditional male name and updated his student records to reflect the name change; and
the University treated him in conformity with his male gender identity in all other
respects. Plaintiff simply has not alleged that Defendants discriminated against him
because he did not behave, walk, talk, or dress in a manner inconsistent with any
38
preconceived notions of gender stereotypes. See Price Waterhouse, 490 U.S. at 235; Prowel,
579 F. 3d at 290.
Instead, the University simply classified him based on his birth sex and prohibited
him from entering sex-segregated spaces based on that classification, for the sole purpose
of enforcing its policy of sex-segregated bathrooms and locker rooms. Plaintiff argues
that Defendants treated him differently from other males because he was transgender.
This contention is simply inconsistent with his other allegations that the University
permitted him, without harassment or discrimination, to dress like a man, act like a man,
change his name to reflect his male gender, and enroll in classes designated for males.
Plaintiff’s sole contention of discrimination is that UPJ forbade him from using University
bathrooms and locker rooms consistent with his male gender identity rather than his
female birth sex. This allegation simply does not constitute a claim for sex stereotyping.
Furthermore, courts that have considered similar claims have consistently
concluded that requiring individuals to use bathrooms consistent with their birth or
biological sex rather than their gender identity is not discriminatory conduct in violation
of federal and state constitutions and statutes. See, e.g., Johnson v. Fresh Mark, Inc., 337 F.
Supp. 2d 996, 1000 (N.D. Ohio 2003) aff’d, 98 F. App’x 461 (6th Cir. 2004) (explaining that
employer did not transgress Title VII because it “did not require Plaintiff to conform her
appearance to a particular gender stereotype, instead, the company only required Plaintiff
to conform to the accepted principles established for gender-distinct public restrooms”);
Hispanic Aids Forum v. Bruno, 792 N.Y.S. 2d 43 (N.Y. App. Div. 2005) (holding complaint
failed to allege a claim for relief under New York Human Rights Laws because plaintiff
39
did not allege that transgender individuals were selectively excluded from bathrooms, but
that they were excluded from certain bathrooms on the same basis as all biological males
and females—biological sexual assignment, which is not impermissible discrimination);
Goins v. West Group, 635 N.W. 2d 717 (Minn. 2001) (holding defendant’s designation of
restroom use, applied uniformly, on the basis of biological gender rather than gender
identity was not discrimination under the Minnesota Human Rights Act). Similarly,
courts have concluded that sex-segregated bathrooms are not impermissible sex
discrimination. See, e.g., Causey v. Ford Motor Co., 516 F. 2d 416 (5th Cir. 1975). Likewise,
at least one court has reasoned that prohibiting a transgender student from using a
restroom consistent with his or her gender does not constitute discrimination under Title
IX, because “it would be a stretch to conclude that a ‘restroom,’ in and of itself, is
educational in nature and thus an education program” as required to state a prima facie
case under the statute. See Doe v. Clark Cnty. Sch. Dist., No. 206-cv-1074-JCM-RJJ, 2008 WL
4372872, at *3 (D. Nev. Sept. 17, 2008).
For these reasons, the Court finds that Plaintiff has failed to state a plausible claim
for relief under Title IX, and will therefore dismiss Count II of Plaintiff’s second amended
complaint.
C.
Retaliation Claims
Plaintiff’s retaliation claims under the Equal Protection Clause and Title IX fare no
better than the discrimination claims. In a Title IX discrimination case, a plaintiff may
assert a private right of action “where the funding recipient retaliates against an
40
individual because he has complained about sex discrimination.” Dawn L. v. Greater
Johnstown Sch. Dist., 586 F. Supp. 2d 332, 373 (W.D. Pa. 2008) (quoting Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 171 (2005)). To state a claim for retaliation, a
plaintiff must allege that (1) he engaged in a protected activity; (2) the funding recipient
subjected him to an adverse action after or contemporaneously with the protected
activity; and (3) a causal link existed between the protected activity and the adverse
action.
Greater Johnstown Sch. Dist., 586 F. Supp. 2d at 374-75 (citing Weston v.
Pennsylvania, 251 F. 3d 420, 430 (3d Cir. 2001)). Protected activities include complaints of
sexual discrimination to the courts, government agencies, or the funding recipient. See
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The adverse action in the
second element of the prima facie case must be “materially adverse” such that it “might
well have dissuaded a reasonable [person in the plaintiff’s position] from making or
supporting a charge of discrimination.” Burlington, 548 U.S. at 68-70. “[P]etty slights or
minor annoyances” are not material. Id. at 68. Regarding the third prong of the prima
facie case of retaliation, a plaintiff must allege that the adverse action was motivated by
“retaliatory animus,” Farrell v. Planters Lifesavers Co., 206 F. 3d 271, 281, 284 (3d Cir. 2000),
and that this animus had a “determinative effect” on the complained-of decision.
Woodson v. Scott Paper Co., 109 F. 3d 913, 935 (3d Cir. 1997). Further, “[t]o establish the
requisite causal connection, Plaintiff must allege facts to demonstrate either:
‘(1) an
unusually suggestive temporal proximity between the protected activity and the allegedly
retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal
link.’” Frazer v. Temple Univ., 25 F. Supp. 3d 598, 615 (E.D. Pa. June 5, 2014) (quoting
41
Cooper v. Menges, 541 Fed. App’x 228, 232 (3d Cir. 2013)). Likewise, a plaintiff must allege
“facts showing ‘actual antagonistic conduct or animus’ in ‘the intervening period,’
between the protected activity and the retaliation.” Frazer, 25 F. Supp. 3d at 616.
Plaintiff has failed to allege sufficient facts to plausibly establish a claim for
retaliation. In his complaint, Plaintiff simply alleges that “following his expulsion,” he
was “investigated by the FBI for potential involvement in a series of bomb threats against
the University” and that “the University gave Mr. Johnston’s name to the FBI in
retaliation for exercising his right to complain about the University’s discriminatory
conduct.” (ECF No. 7 ¶¶ 83-84). Plaintiff’s complaint fails to allege sufficiently that the
adverse action was motivated by retaliatory animus or that any animus had a
determinative effect on the complained-of decision.
As such, Plaintiff’s claims for
retaliation under both the Equal Protection Clause of the Fourteenth Amendment and
Title IX will be dismissed.
D.
State Law Claims
In addition to his federal law claims for discrimination, Plaintiff has asserted three
state law claims in his second amended complaint. Count Three asserts a claim for
discrimination and retaliation under the Pennsylvania Human Relations Act, 43 Pa. Cons.
Stat. § 955.
Count Four asserts a claim for discrimination and retaliation under the
Pennsylvania Fair Educational Opportunities Act, 24 Pa. Cons. Stat. § 5001, et seq. Count
Five asserts a common law breach of contract claim related to Plaintiff’s REB Commuter
Scholarship and UPJ’s non-discrimination policy.
42
Because the Court grants Defendants’ motion to dismiss Plaintiff’s federal claims,
the Court declines to exercise supplemental jurisdiction over Plaintiff’s state law claims
and will dismiss those claims without prejudice. See 28 U.S.C. § 1367(c)(3) (“The district
courts may decline to exercise supplemental jurisdiction over a claim under subsection (a)
if . . . the district court has dismissed all claims over which it has original jurisdiction.”);
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the federal claims are
dismissed before trial, even though not insubstantial in a jurisdictional sense, the state
claims should be dismissed as well.”); King v. County of Gloucester, 302 F. App’x 92, 99 (3d
Cir. 2008); Bartow v. Thomas, No. 3:13–cv–271, 2014 WL 2993786, at *6 (W.D. Pa. July 2,
2014).
VI.
Conclusion
Plaintiff has failed to state a plausible claim for relief for discrimination or
retaliation under either the Equal Protection Clause or Title IX.22 Accordingly, for the
reasons stated above, the Court will grant Defendants’ motion to dismiss Plaintiff’s
second amended complaint. Because Plaintiff has failed to cure the deficiencies of his
complaint despite having multiple opportunities, these claims are dismissed with
prejudice, and no further amendment will be permitted because it would be futile.
An appropriate order follows.
The Court recognizes the changing perceptions in society concerning transgender individuals.
“However, the function of this Court is . . . to construe the law in accordance with proper statutory
construction and judicial precedent. The Court is constrained by the framework of the remedial
statute enacted by Congress . . .” Oiler v. Winn-Dixie Louisiana, Inc., No. 00-cv-3114, 2002 WL
31098541, at *6 (E.D. La. Sept. 16, 2002).
22
43
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SEAMUS JOHNSTON,
)
CIVIL ACTION NO. 3:13-213
)
Plaintiff,
)
JUDGE KIM R. GIBSON
)
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.
)
ORDER
AND NOW, this 31st day of March 2015, upon consideration of Defendants'
motion to dismiss (ECF No. 9), and for the reasons set forth in the accompanying
memorandum,
IT IS HEREBY ORDERED that Defendants' motion to dismiss is GRANTED,
with prejudice. The Clerk of Court shall mark this case closed.
BY THE COURT:
KIM R. GIBSON
UNITED STATES DISTRICT JUDGE
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