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Pennsylvania District Judge Refuses to Dismiss Transgender Student’s Title IX and Equal Protection Claims

Posted on: November 24th, 2017 by Art Leonard No Comments

U.S. District Judge Robert D. Mariani denied a school district’s motion to dismiss Title IX and Equal Protection claims by a transgender elementary school student in A.H. v. Minersville Area School District, 2017 U.S. Dist. LEXIS 193622, 2017 WL 5632662 (M.D. Pa., Nov. 22, 2017).  The court rejected the school district’s argument that in light of the Trump Administration’s “withdrawal” of a Guidance issued by the Obama Administration on protection for transgender students under Title IX, the complaint failed to state a valid claim.

A.H., the eight-year-old plaintiff (whose suit was brought by “her next best friend and mother, Tracey Handling”), classified male at birth, “was diagnosed with gender dysphoria while in kindergarten,” wrote Judge Mariani, explaining, “Under the care of a pediatric psychologist, Plaintiff and her family have been exploring ways for Plaintiff to express her gender identity at home, in school, and in the community. . . Since beginning kindergarten in 2014, Plaintiff has continuously presented herself both in and out of school as a female.  Plaintiff uses a female name, dresses in clothing traditionally associated with females, is addressed using female pronouns, and is known to her classmates as a female student.”  Even though A.H.’s mother, supportive of her daughter’s needs, asked that she be allowed to use the girls’ bathroom in school, the School Superintendent, Carl McBreen, said they would not allow it in order to protect the privacy of other students.

This was not a problem during kindergarten, since the kindergarten classroom has a single-use bathroom used by all the students, and the only adverse problem during A.H.’s kindergarten year came during a field trip, when teachers required A.H. to wait until all the boys had used a male-designated bathroom and then allowed A.H. to use that bathroom. “The incident upset Plaintiff and resulted in some of her classmates asking her why she, as a girl, was using the boys’ bathroom.”  A.H.’s mother questioned the principal about this.  His response was that it was “school policy that a child must use the bathroom that corresponds with the sex listed on the child’s birth certificate,” and talked about “protecting” the other students from A.H.  However, despite repeated requests, the school never showed A.H.’s mother an actual written policy.  Her request to allow A.H. to use girls’ bathrooms during A.H.’s first grade year was turned down, with Superintendent McBreen stating that “Minersville isn’t ready for this.”  While giving a school tour to Mrs. Handling, the principal referred to A.H. using male pronouns, even after she corrected him.

After the Obama Administration Guidance was distributed to all public school districts, Superintendent Breen informed Mrs. Handling that her daughter could use the girls’ restrooms at school, but the school “has not created any policy on bathroom access for transgender students.” A.H. filed suit seeking a court order to comply with Title IX and Equal Protection requirements.

In its motion to dismiss the Title IX claim, the school first argued that the Trump Administration’s withdrawal of the Obama Administration Guidance left “no legal basis to support a Title IX claim against the school district for transgender discrimination.” After concisely relating the sequence of events surrounding the Obama Administration Guidance and the Trump Administration withdrawal, Judge Mariani, quoting from Evancho v. Pine-Richland School District, 237 F. Supp. 3d 267 (W.D. Pa. 2017), noted that “The 2017 [Trump Administration] Guidance ‘did not propound any “new” or different interpretation of Title IX or [DOE’s restroom regulation], nor did the 2017 Guidance affirmatively contradict the 2015 and 2016 Guidance documents.”  Indeed, the Evancho court had observed, the 2017 Guidance “appears to have generated an interpretive vacuum pending further consideration by those federal agencies of the legal issues involved in such matters.”

“Thus,” wrote Judge Mariani, “the fact that the Department of Justice and the Department of Education withdrew their interpretation of Title IX does not necessarily mean that a school, consistent with Title IX, may prohibit transgender students from accessing the bathrooms that are consistent with their gender identity. Instead, it simply means that the 2016 Guidance cannot form the basis of a Title IX claim.”  Lacking a binding precedent on this issue from the U.S. Supreme Court or the 3rd Circuit Court of Appeals (which has jurisdiction over federal courts in Pennsylvania), Judge Mariani looked to the 7th Circuit’s decision in Whitaker v. Kenosha Unified School District, 858 F.3d 1034 (7th Cir. 2017), as well as the earlier decision from the Western District of Pennsylvania court in Evancho.  He observed that Title IX courts have looked to precedents under Title VII of the Civil Rights Act for guidance in determining the scope of protection under law banning discrimination because of sex, and that both the 7th Circuit and the Evancho court, following such precedents, had concluded, in the words of the 7th Circuit, that “a policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”  The 7th Circuit specifically rejected the argument that providing access to a gender-neutral single user restroom is “sufficient to relieve the School District from liability, as it is the policy itself which violates the Act.”  Similarly, the Evancho court, while noting that the law on this issue was currently “clouded with uncertainty,” determined that the transgender student plaintiffs in that case had “made a more than sufficient ‘showing’ in their Complaint of a right to relief under” Title IX.

Mariani pointed out that the Minersville school district had not attempted in its motion to distinguish these precedents or “present any arguments as to why this Court should not follow their holdings. The Court, further, sees no reason why the analysis and holdings of either Evancho or Whitaker are unsound when applied to the facts of this case.”  Mariani concluded, “Contrary to Defendant’s argument, a specific practice need not be identified as unlawful by the government before a plaintiff may bring a claim under Title IX . . .  Further, while the Court recognizes that the Amended Complaint seems to indicate that Plaintiff now has access to the girl’s bathroom at school and thus may not have alleged any continuing violation of Title IX, that does not undercut the fact that Plaintiff has adequately pleaded that a violation of Title IX occurred as some point in time.”  The judge also rejected the school’s argument that it did not, as a matter of law, have any “discriminatory intent” when it acted.  First, he pointed out, discriminatory intent was not a prerequisite to getting injunctive relief, just damages.  And, in any case, statements attributed to school officials could provide a basis for finding discriminatory intent.

Turning to the Equal Protection claim under the 14th Amendment, Judge Mariani found agreement of the parties that heightened scrutiny would apply to judicial review of the school’s alleged policy and its actions.  As to that standard, which requires the defendant to show that the challenged policy serve an important government objective, Judge Mariani found an absence of proof by the school district.  “Here,” he wrote, “Defendant does not advance any important objective that its bathroom policy served.  Instead, Defendant reiterates its argument that, in the absence of guidance from the government, Defendant made all reasonable efforts to accommodate Plaintiff,” but this argument fails.  “Plaintiff has adequately alleged the existence of a school policy that treated her differently on the basis of her transgender status or nonconformity to gender stereotypes.  As such, she has sufficiently stated a claim for relief under the Equal Protection Clause.”  As constitutional discrimination claims require a showing of discriminatory intent, the judge pointed to statements by school officials that adequately serve at this stage of the case as evidence of discriminatory intent.  Judge Mariani noted the similar rulings in Whitaker and Evancho, while also noting a contrary ruling from several years ago by a different district judge in the Western District of Pennsylvania, Johnston v. University of Pittsburgh, 97 F. Supp. 3d 657 (W.D. Pa. 2015), which for some reason the school district never even cited in support of its motion – perhaps because that opinion is somewhat of an embarrassment.

Judge Mariani was appointed to the court by President Barack Obama in 2011.

A.H. and her mother are represented by David L. Deratzian of Hahalis & Kounoupis PC in Bethlehem, Pennsylvania.

Supreme Court Blocks Utah Marriages Pending 10th Circuit Decision

Posted on: January 6th, 2014 by Art Leonard 2 Comments

This morning, the U.S. Supreme Court issued the following order:

MONDAY, JANUARY 6, 2014
ORDER IN PENDING CASE
13A687 HERBERT, GOV. OF UT, ET AL. V. KITCHEN, DEREK, ET AL.
The application for stay presented to Justice Sotomayor and
by her referred to the Court is granted. The permanent
injunction issued by the United States District Court for the
District of Utah, case No. 2:13-cv-217, on December 20, 2013, is
stayed pending final disposition of the appeal by the United
States Court of Appeals for the Tenth Circuit.

This says everything but leaves many questions. First, Justice Sotomayor referred the application for the stay to the full Court, as most observers expected her to do, and that decision on her part really needs no explanation. Second, the Court granted the application, to the extent of holding that the federal district court’s injunction is stayed until “final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.” The Court, as is normal practice, did not give any explanation as to how this application met the criteria it has used in the past to determine whether a trial court ruling in a constitutional case should be stayed by the Supreme Court when both the trial court and the court of appeals have denied the same application. When the Supreme Court is not unanimous on one of these stay applications, there is occasionally a dissenting opinion by one or more of the Justices, which can shed some light on the discussion, if any, between the justices, but there is no indication of that.

So one can at best speculate as to why this action was taken. In my previous discussion after the opposing memo was filed by the plaintiffs, I suggested that if the Court decides this based on the legal criteria it had used in the past, the stay would be denied, but if they decided it based on realpolitik, the stay would be granted. Is anybody surprised which governed here? My thinking on this is also affected by the discussion I heard yesterday at the AALS Section on Sexual Orientation and Gender Identity issues program at the AALS annual meeting in New York. At least one prominent legal scholar read the Windsor case as not really signaling a readiness by the Court to embrace marriage equality as a 14th Amendment requirement on the states. Even though Justice Kennedy’s opinion in Windsor (the DOMA case) spoke a lot about the federal government’s obligation to respect the dignity of same-sex married couples by not discriminating against them in determining federal rights and obligations, this scholar emphasized that the court spoke of that dignity as something that had been conferred by the state when it opened up marriage to same-sex couples, and that the opinion had several references to the traditional role of the state in defining marriage. If that view, drawn from a close reading of Kennedy’s decision by a legal scholar who is, at least politically, disposed to support marriage equality, accurately describes the limits of Kennedy’s support for marriage equality, then perhaps the Court concluded that the state of Utah had shown that its chances of prevailing on the merits of the appeal are decent enough to support staying the injunction pending a final appellate ruling in the case.

The important and immediate question this brief Order does not address is: What is the status of the approximately 1,300 same-sex marriages that were licensed and performed in Utah between December 20 and January 3? Are they presumed to be valid and entitled to be treated as valid by the federal and state and local governments during this interim period of the appeal? This is an immensely practical question, because we are about to launch into tax filing season for the 2013 tax year, and those couples who married by the end of business on Dec. 31 need to know which tax status they use, single or married, in filing their federal and state income tax returns and, possibly, estate tax returns, if somebody who married in 2013 has already passed away before the end of that year. Those who married out of state already know that they must file their federal returns for 2013 as “married,” since the IRS is using the place of celebration rule to determine tax filing status, but they don’t necessary know how to file their Utah state returns. Those who married in Utah over recent weeks need to be advised as to both issues. Similarly, there are likely to be questions arising over the next few months until the 10th Circuit rules as to whether those already married will be treated as married by the federal and state governments for a range of issues, including Social Security survivor benefits, for example, Family and Medical Leave Act benefits, and so forth. As for state law, the administration of Gov. Herbert had advised state agencies that marriages contracted over the past few weeks should be fully recognized for such things as spousal benefits for state employees. Whether that remains true for marriages performed prior to the issuance of the stay needs to be clarified quickly.

The Obama Administration needs to quickly address the issue of federal recognition for the existing marriages, and the Utah government should also issue clarifying statements as soon as possible.