Switching the focus from Title IX of the Education Amendments of 1972 to the Equal Protection Clause of the federal Constitution, U.S. District Judge Mark R. Hornak of the Western District of Pennsylvania awarded a preliminary injunction on February 27 to three transgender high school students represented by Lambda Legal who are challenging a school board resolution that bars them from using sex-segregated restrooms that are consistent with their gender identities. Evancho v. Pine-Richland School District, Civil No. 2:16-01537.
Acknowledging the Trump Administration’s February 22 action withdrawing two letters sent by the U.S. Education Department during the Obama Administration on the subject of transgender restroom access under Title IX as well as the pending U.S. Supreme Court consideration of Gloucester County School Board v. G.G. (certiorari granted October 28, 2016), a Title IX claim by Gavin Grimm, a transgender boy from Virginia, against his school district, in which that Court granted the school district’s request to stay a preliminary injunction issued by the district court (see 136 S. Ct. 2442 (Aug. 3, 2016)), Judge Hornak wrote that he “cannot conclude that the path to relief sought by the Plaintiffs under Title IX is at the moment sufficiently clear that they have a reasonable likelihood of success on that claim.” A “reasonable likelihood” finding is a prerequisite to issuing preliminary relief.
On the other hand, Hornak concluded that the plaintiffs did have such a path under the Equal Protection Clause and decided to blaze a new trail on this issue, in which prior courts have focused their attention almost exclusively on Title IX in line with the general preference of federal courts to rule based on statutes rather than resorting to constitutional rulings.
Hornak prefaced his constitutional analysis with a detailed set of factual findings and a sharp focus on the particular facts of this case, including that the three transgender students involved all began their transitions a few years ago and had been using restrooms consistent with their gender identities without any opposition from school administrators or any disturbance as early as the 2013-14 school year. In each case, they and their parents had met with school administrators, who had agreed to recognize and honor their gender identities in all respects. Each of them has been living consistent with their gender identity for several years, although because of their ages only one of them has obtained a new birth certificate. Administrators, teachers and fellow students have consistently used their preferred names and pronouns and treated them accordingly. It wasn’t until a student mention the restroom use to her parents, who then contacted the school board together with other parents and turned it into an “issue,” that administrators even became aware that the transgender students were using the restrooms, since nobody had complained about it or made it an issue before then. Ultimately the school board responded to noisy parental opposition at a series of public meetings, first rejecting a resolution allowing the transgender students to use the restrooms consistent with their gender identity by a tie vote, then adopting a contrary resolution by a slim margin.
The judge also pointed out that the boys’ and girls’ restrooms at the Pine-Richland high school were designed with individual privacy in mind, with dividers between the urinals in the boys’ rooms and privacy-protecting stalls with internal locks for the toilets in both rooms. Locker room access is not an issue at this point in the case, since all three plaintiffs have completed their physical education requirements and are not using the locker rooms. The school also has established numerous single-user restrooms that are accessible to students. The judge easily concluded, based on uncontested evidence that the restrictive Resolution was not necessary to protecting anybody’s privacy, thus rejecting one of the main justifications advanced by the school board.
Neither the Supreme Court nor the 3rd Circuit Court of Appeals, which has jurisdiction over federal trial courts in Pennsylvania, has ruled on what standard of judicial review applies to government policies that discriminate because of gender identity. The school board argued that this means the court should use the least demanding standard, rationality review, to evaluate its policy. Judge Hornak rejected that argument, saying, “First, that means that applying an Equal Protection standard other than rational basis in such a setting is not contrary to settled law, and second, when an issue is fairly and squarely presented to a District Court, that Court must address it. Dodging the question is not an option.” He also observed that an earlier decision by another trial judge in his district involving a transgender student, Johnston v. University of Pittsburgh, 97 F. Supp. 3d 557 (W.D. Pa. 2015), was not binding on him, and he found that case distinguishable on the facts and the law, not least because of the extended period in this case during which the plaintiffs used restrooms without incident and had full recognition of their gender identity by the school administration and staff.
Reviewing the various criteria that the Supreme Court has discussed in cases about the appropriate level of equal protection review, Hornak concluded that the “intermediate standard” used in sex discrimination cases should apply in this case. “The record before the Court reflects that transgender people as a class have historically been subject to discrimination or differentiation; that they have a defining characteristic that frequently bears no relation to an ability to perform or contribute to society; that as a class they exhibit immutable or distinguishing characteristics that define them as a discrete group; and that as a class, they are a minority with relatively little political power.” Focusing on this particular case, he wrote, “As to these Plaintiffs, their transgender characteristics are inherent in who they are as people, which is not factually contested by the District. As to these Plaintiffs, and more generally as to transgender individuals as a class, that characteristic bears no relationship to their ability to contribute to our society. More precisely, the record reveals that the Plaintiffs are in all respects productive, engaged, contributing members of the student body at the High School. Thus, all of the indicia for the application of the heightened intermediate scrutiny standard are present there.”
That means that the defendants have the burden to justify their discriminatory policy, and the judge concluded they were likely to fall short in that. “Specifically, what is missing from the record here are facts that demonstrate the ‘exceedingly persuasive justification” for the enforcement of Resolution 2 as to restroom use by these Plaintiffs that is substantially related to an important governmental interest,” wrote Hornak. The Resolution was not shown to be “necessary to quell any actual or incipient threat, disturbance or other disruption of school activity by the Plaintiffs,” he found, and there was no evidence that it was necessary to “address any such threat or disturbance by anyone else in the High School restrooms.” Furthermore, it did not address any privacy concern “that is not already well addressed by the physical layout of the bathrooms,” he found, continuing, “it would appear to the Court that anyone using the toilets or urinals at the High School is afforded actual physical privacy from others viewing their external sex organs and excretory functions. Conversely, others in the restrooms are shielded from such views.” And the school’s existing code of conduct as well as state laws already exist to deal with any “unlawful malicious ‘peeping Tom’ activity by anyone pretending to be transgender,” he wrote, dismissing a concern raised by the defendants as a hypothetical justification for the policy.
The school board argued that some parents had threatened to withdraw their students from school if the Board did not keep transgender students out of the restrooms, but the court was not willing to countenance this as a justification for the policy. “If adopting and implementing a school policy or practice based on those individual determinations or preferences of parents – no matter how sincerely held – runs counter to the legal obligations of the District,” he wrote, “then the District’s and the Board’s legal obligations must prevail. Those obligations to the law take precedence over responding to constituent desires,” because the 14th Amendment’s Equal Protection Clause “is neither applied nor construed by popular vote.”
Furthermore, rejecting the Board’s argument that enjoining the Resolution while the case proceeds was an improper change of the “status quo,” the court found that for several years the plaintiffs freely using the restrooms consistent with their gender identity was the “status quo,” even if school officials claimed they were unaware of it. This was a “persistently-applied custom or practice” which had the same weight as a written policy and, of course, until the Resolution was adopted, the District had no written policy on this issue. The court rejected the defendants’ argument that the availability of single-user restrooms “sprinkled around the High School” provided a sufficient “safety valve” for the plaintiffs, making an injunction unnecessary. “Given that settled precedent provides that impermissible distinctions by official edict cause tangible Constitutional harm,” he wrote, “the law does not impose on the Plaintiffs the obligation to use single-user facilities in order to ‘solve the problem.’” He found that this was “no answer under the Equal Protection Clause that those impermissibly singled out for different treatment can, and therefore must, themselves ‘solve the problem’ by further separating themselves from their peers.”
He easily concluded that the differential treatment inflicted irreparable harm on the plaintiffs, and that ordering the District to allow them to use gender-appropriate restrooms would “cause relatively little ‘harm’ in the preliminary injunction sense – if any harm at all – to the District and the High School community.” It was crucial to this conclusion, of course, that the plaintiffs had been using the restrooms without incident for years until some parents made an issue out of it. He also found that issuing the injunction would serve the public interest by vindicating the constitutional rights of the plaintiffs.
In case a second-guessing court of appeals should disagree with his determination that heightened scrutiny applied to this case, Judge Hornak also stated that the Resolution probably would not even survive rationality review, since he found that it was not necessary to achieve any of the goals suggested by the defendants.
Judge Hornak’s decision not to grant the injunction based on Title IX seems prudent in light of the unsettled situation he describes. The 4th Circuit Court of Appeals ruling in the Gavin Grimm case depended on deference to the Obama Administration’s interpretation of the Education Department’s bathroom regulation. With that interpretation being “withdrawn” by the Trump Administration in a letter that did not substitute any new interpretation in its place, there is nothing to defer to and the construction of the statute and regulation is now pending before the Supreme Court, which voted 5-3 last summer to stay the district court’s preliminary injunction in the Grimm case. Hornak noted that the criteria for the Supreme Court issuing a stay in a case like that include the Court’s judgment that the case presents a serious possibility of being reversed by the Court on the merits. What he omits to mention is that the stay was issued only because Justice Stephen Breyer, who would in other circumstances have likely voted against granting the stay, released an explanation that he was voting for the stay as a “courtesy” to the four more conservative justices, undoubtedly because they had the four votes to grant a petition to review the 4th Circuit’s ruling. Under the Supreme Court’s procedures, five votes are needed to take an action, such as issuing a stay or reversing a lower court ruling, but only four votes are needed to grant a petition to review a lower court decision. It was clear in that case that the Gloucester County School Board would be filing a petition for review and that there were four justices ready to grant it. Judge Hornak interpreted that, as Justice Breyer clearly did, as a signal that the interpretation of Title IX in this context is up for grabs. If Neil Gorsuch is confirmed by the Senate in time to participate in deciding that case, the outcome will probably turn on Justice Anthony Kennedy, who voted for the stay. (Justices Ginsburg, Sotomayor and Kagan announced that they would have denied the stay.)
Judge Hornak’s ruling confirms that for the overwhelming majority of educational institutions subject to Title IX because they receive federal funds, it does not really matter whether Title IX requires them to afford gender-consistent restroom access to transgender students (or staff, for that matter), because as government-operated institutions they are bound to respect the Equal Protection rights of their students and employees. However, for non-governmental educational institutions that receive federal funds, either through work-study programs, loan assistance, or research grants in the case of the major private universities, their federal obligations towards transgender students depend on Title IX and whatever state or local laws might apply to them as places of public accommodation, which vary from state to state, only a minority of states and localities protecting transgender people from discrimination.
In light of the lack of 3rd Circuit appellate precedent on the constitutional issue, it would not be surprising if the defendants seek a stay of this injunction from the court of appeals, and there is no predicting how that court would rule, although the likelihood that the Supreme Court will issue a ruling of some sort in the Grimm case by the end of June might lead them to err on the side of caution to give the school district temporary relief.
Lambda Legal’s attorneys representing the plaintiffs are Omar Gonzalez-Pagan, Christopher Clark and Kara Ingelhart, who are joined by local counsel in Pennsylvania, Tracie Palmer and David C. Williams of Kline & Specter, P.C..Tags: 14th Amendment, Bathroom Regulations, Equal Protection Clause, Evancho v. Pine-Richland School District, gender identity discrimination, heightened scrutiny, Obama Administration Bathroom Guidance, Title IX, transgender bathroom access, transgender restroom access, transgender rights, Trump Administration Withdrawal of Bathroom Guidance, U.S. District Court Western District of Pennsylvania, U.S. District Judge Mark R. Hornak