OPINION
Thе three high' school student Plaintiffs are each transgender, and all are in their senior year at Pine-Richland (Pa.) High School (“High School”). ECF 43 at ¶ 15. Two of them, Juliet Evancho and Elissa Ridenour, each over eighteen years old, had “male” listed on their birth certificates when they were born.
The Defendant School District (“District”)
The central issue now before the Court is whether the District acted in accord with federal law when it limited, by formal School Board (“Board”) Resolution 2,
The Court concludes that the Plaintiffs have a reasonable likelihood of success on the merits of their Equal Protection claim but not on the merits of their Title IX claim. The Court will therefore^ grant in
I.
Court cases involve real people and real events. Facts matter,
Plaintiff Juliet Evancho began to change her appearance and dress to that typically associated with a girl at around age 12 or 13. She began medically supervised hormone treatment at around age 16, and in 2015, at age 17, she publicly began living as a girl. During the 2015-16 school year, Ms. Evancho and her parents met with school officials regarding her gender identity as a girl, and those school officials were fully on board with treating her consistently with that identity. She says that the passage of Resolution 2 and its implementation as to her have caused her serious emotional and other distress, making her fee! unsafe, depressed, marginalized and stigmatized by, among other things, the School’s requirement that she use only either the boys restrooms or the single-user restrooms at the High School.
Plaintiff Elissa Ridenour began to live her life as a girl at age 14, and she likewise began medically supervised hormonal therapy thereafter. In 2012, while in 8th grade, she and her parents met with school officials 'to advise them that she was living her life in all'respects as a girl. The District officials stated that they would engage with her in that fashion. ECF 71-2. Ms. Ridenour is treated by the High School community as a girl, and—at least prior to the passage of Resolution 2—was fully accepted as a girl. She reports that Resolution 2 had essеntially the same impact on her as does Ms. Evancho. ECF 24-3 at ¶¶ 28, 31, 34, 40. Plaintiff Ridenour’s photo, which shows that her appearance is consistent only with the gender .identity that she lives every day, is in the record at ECF 24-3 at ¶ 8.
Plaintiff A.S. and his parents met with school counselors in 2015 and advised them that he lived as a boy. The school counselors advised him that he would be treated as a boy within the school community, and he was. Beginning in his junior year at the High School, A.S. started using the “boys” restroom with no issues, and he was widely accepted as a boy by the school community. In 2016, he too began receiving medically-directed hormonal treatment, and he has now legally changed his given name to one traditionally used by boys. A.S. also asserts the same sorts of actual harm from the implementation of Resolution 2 as do the other Plaintiffs. ECF 24-4 at ¶¶24, 33-35.
The Plaintiffs have submitted the declaration of Dr. Diane Ehrensaft, a developmental and clinical psychologist who has declared that she has considerable educational and professional experience in the area of gender identity matters. ECF 24-5. Dr. Ehrensaft stated that what is reported by the Plaintiffs as to their gender identities, their life experiences, and the scope of the impact of that identity on their daily living is fully consistent with their having exactly the gender identities they say that they have and the way they live in all facets of their lives. The Plaintiffs’ own unopposed . declarations, and those of their parents, state the depth and consistency yyith which they live the gender identities they have expressed on the record here. Indeed, there is no record evidence that these Plaintiffs do not actually have the specific gender identities they relate to this Court (and as they related to, and were known by,"the District Administration while Resolution 2 was under consideration), nor has the District advanced any arguments to that effect.
The parties seem to agree that besides Plaintiffs, there are no other openly-known transgender students at the High School at this time. The District does not advance as a factual matter that there are any other students at any level in the District that have advised the District that they are transgender. ECF 73 at 83, 88. Thus, in terms of the real world, the passage of Resolution 2 and its current application would fairly be understood by the Plaintiffs, the District and everyone else paying attention to these matters as relating to
As to the High School restroom facilities themselves, the parties agree that the student restrooms at the High School are well-maintained, well-lit, and provide locking doors for the toilets in both the girls and boys restrooms. There are partitions on the urinals in the boys rooms. ECF 23-4'at 40. The photos of the restrooms placed into the' record demonstrate all of that to be the case. ECF 41-3. The parties agree that the nearly one dozen single-user restrooms arrayed around the High School are now open to any student at any time, including to any student that has a particularized privacy concern. ECF 38 at 35-39.
Until early 2016, there were no institutional issues with the participation of the Plaintiffs in any facet of daily life at the High School. The District, its educational staff, and apparently their fellow students, treated each of them in the very same way that their own families did—that is, consistently with their gender identities. The record reveals that the Plaintiffs appear to have as their principal goal living and attending school in about as unexceptional a way as is possible. It is not an overstatement to observe that on the record before the Court, there simply were no issues or concerns from the District’s perspective as to the Plaintiffs’ unlimited participation in all daily activities at school, and the District’s faculty, staff and Administration were fully supportive of. them. ECF 38 at ¶ 13. The most distinctive and illustrative evidence of this is that'Juliet Evancho ran for Homecoming Queen in 2016, and she was elected by her peers to the “Homecoming Court” of finalists for that honor.
In early 2016, apparently fueled by an inquiry from a parent of a student at the High School, ECF 38 at ¶ 20, the District’s Superintendent addressed the restroom issue with' the entire school community for the first time.
At the end of its process,
At oral argument, the District’s counsel advised the Court that “biological sex” for purposes of Resolution 2 means the then-existing presence of a penis (boys) or a vagina (girls). District counsel was not in a position to authoritatively respond when asked by the Court what the biological sex would be, for Resolution 2 purposes, of someone born with indeterminate primary external sex organs. District counsel did note that if, for instance, a boy had lost his penis due to tráuma or surgery, he would no longer “be a boy”—even if as a result, he had not acquired á vagina. ECF 73 at 116-118.
As of. the passage of Resolution 2,
The record does not reveal (1) the analysis by which the Board chose its specific line of demarcation (or even if the Board, acting as a board,
The transcripts of the relevant portions of the Board meetings leading up to the adoption of Resolution 2 do not reflect any findings by the Board (1) that the basis for the enactment and enforcement of Resolution 2 was to address actually occurring, or actually threatened situations of student restroom use for impermissible or unlawful purposes by anyone, including students, masquerading as being transgender; or (2) that the Plaintiffs’ restroom usage pre-enactment of Resolution 2 in any way actually interfered with the orderly operations of the High School, or imminently threatened to do so.
There is no record evidence that the Boаrd actively discussed or considered any risk of harm to the Plaintiffs after Resolution 2’s passage from Plaintiffs’ use of common restrooms that conformed to their assigned sexes, but which were wholly contrary to them gender identities. The Board’s discussions did reflect that it viewed the High School’s single-user restrooms as an alternative available to the Plaintiffs that would fully address their restroom needs.
The parties agree that other than perhaps one report received by the High School principal in October 2015 from a student that “there was a boy” in the girls bathroom (apparently in reference to Plaintiff Evancho), followed by a parent inquiry along the same lines in early 2016, there have been no reports of “incidents” where the use of a common restroom by any one of the Plaintiffs has caused any sort of alarm to any other student, nor o’f any actual or actually threatened Impermissible conduct by or toward any student. There is no record evidence that any Plaintiff ever did, or threatened to do, anything to' actually invade the physical or visual privacy of anyone • else in the 'High School.
When the Court, asked District counsel at oral argument to set forth one or more cоncrete examples of how the Plaintiffs’ resumed and then continued use of the restrooms consistent with their gender identities would actually lead to the invasion of concrete privacy interests in light of the factual record summarized above, which would include the potential exposure of a partially clothed student’s body to a student of a different assigned sex, District counsel instead described a fundamental societal interest in privacy and an essentially inviolate “zone of privacy” applicable in all cases beginning at the restroom door.
District counsel then described that privacy interest by calling upon a hypothetical matching a personal experience from his own school days. District counsel recited that while -in high school, he competed on the cross-country team. Due to the press of tight school time schedules, he would from time to time change from “school clothes” into cross-country togs while standing in the comer of the rest.room at his school (which appears to be another school altogether). ECP 73 at 131, 143.-Perhaps that reported anecdotal event can be treated by the Court as being a plausible historical recitation of life events. However, there is no indication that such an event has occurred in the District, and even assuming that it might in the future, there is no record evidence as to the comparable “tightness” of the time schedule atthis high school necessitating such actions, and no record evidence of the unavailability of actual locker rooms for use as a locker room ,(or as to the physical set up of such locker rooms in terms of providing privacy to each locker room user).. The District’s counsel also advised the Court that some of the older student restrooms in the High School had somewhat lower toilet partitions, which while still occluding any view of the user of the enclosed toilet, could allow a student to grab onto the top of the partition and hoist themselves up in order to peer over the partition at another student. But District counsel also candidly advised the Court that they were aware of no reports of incidents in which such .conduct actually occurred. ECF 73 at 80.
The parties agree that for all purposes other than restroom use, the District treats each of the' Plaintiffs consistently with their stated and experienced gender identity, and it appears to the Court that it seeks to do so with appropriate sensitivity to their needs and interests and the needs and interests of all students. The parties have advised the Court that each Plaintiff
All of the Plaintiffs, and the parents of Juliet Evancho and Elissa Ridenour, have 'stated in their declarations in considerable detail that—particularly in light of the persistent manner in which the Plaintiffs live their lives consistent with their gender identities, and consistent with how the District treats them in all other regards—the enactment and enforcement of Resolution 2 has and will continue to segregate them from their peers by changing the status quo as to their restroom use, and in doing so, will marginalize and stigmatize them based on their actual gender identities. The Plaintiffs in their supplemental declarations advise the Court that during and since the public discussions that led up to the passage of Resolution 2, they have been the subject of several episodes of what they believe to be untoward or harassing conduct by some other students based on their gender identities.
Finally, the Plaintiffs are at a real risk of actual harm in the form of disciplinary action if they use the common restrooms that are consistent with their gender identities. At oral argument, the District’s lawyers advised the Court that, if confronted with the continued use by the Plaintiffs of school restrooms that are consistent with their gender identities but inconsistent
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Having reviewed the extensive record summarized above, and for the reasons that follow, the Court concludes that the Plaintiffs have made a persuasive case that there is a reasonable likelihood that they will demonstrate (1) that the reasons and rationales stated by the District for the enforcement of Resolution 2 do not support its application to school bathroom use by these three Plaintiffs when applying the standards that now exist under prevailing law. Therefore they have a reasonable likelihood of success on the merits of their Equal Protection claim (but not their Title IX claim); (2) that they have suffered and will continue to suffer immediate and irreparable harm; (3) that the balance of equities falls in their favor; and (4).that the public interest will be served by the grant of limited preliminary injunctive relief in their favor. The District’s Motion to Dismiss both of the Plaintiffs’ claims will be denied without prejudice,
II.
The parties agree on the applicable legal standard for the grant or denial of preliminary injunctive relief. To prevail, the Plaintiffs must demonstrate that “(A) they are likely to succeed on the.merits of their claims, (B) they are likely to suffer irreparable harm without relief, (C) the balance of harms favors them, and (D) relief is in the public interest.” Issa v. Sch. Dist. of Lancaster,
The core issue before the Court is whether there is a reasonable likelihood of success for the Plaintiffs on either or both of their federal claims—that the. enforcement of Resolution 2 violates the Plaintiffs’ rights as secured by the- Equal Protection Clause of the Fourteenth Amendment or by Title IX. For the reasons that follow, the Court concludes that the Plaintiffs have made that showing as to their Equal Protection claim, but they cannot at this juncture do so.as to their Title IX claim.
III.
The Court will begin by addressing the Plaintiffs’ likelihood of success on the merits of their Equal Protection claim.
The Fourteenth . Amendment Equal Protection Clause provides that no State may “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. This broad principle, however, “must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons.” Romer v. Evans,
The Equal Protection Clause is fully applicable to this public school district established and maintainéd under the laws of the Commonwealth of Pennsylvania. Fitzgerald v. Barnstable Sch. Comm.,
As a preliminary matter, the Court, concludes that on the record now before it, the Plaintiffs have shown that the District is treating them differently from other students who are similarly situated on the basis of their transgender status. See Kazar v. Slippery Rock Univ. of Pa., No. 16-2161,
Given that the classification at hand is the Plaintiffs’ transgender status, the parties dispute which Equal Protection standard should apply. The District says that the lowest Equal Protection bar applies, that is the rational basis test. Under that test, the government classification passes muster so long as there is some rational basis for it. .The rationale need not be one actually relied on by the governmental actpr, and it need not have been thought of or articulated at the time. It is sufficient, say the Defendants, if a reviewing court can think of any rational basis supporting the challenged governmental action. See Natl. Assoc. for the Advancement of Multijurisdiction Practice v. Simandle,
The District cites two reasons in support of its position that the Court should apply rational basis review. The first is that neither the Supreme Court nor our Court of Appeals has specifically weighed in as to the applicable Equal Protection standard as to classifications based on transgender status. While that may be true, the existence of that decisional vacuum is not enough to resolve the question. 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.
The second reason advanced by the District is that in Johnston v. University of Pittsburgh,
The Plaintiffs in turn approach this issue with a double-barreled argument. First, they say that in light of the factual record set out above, there simply is no rational basis for the enactment and enforcement of Resolution 2—at least not as it relates to the use of the High School’s restrooms by the Plaintiffs. They contend that there has been no rational basis that can be identified that would insulate Resolution 2 from an Equal Protection challenge, and that in any event the rationál basis test, applied in its most accommodating iteration, still requires something, and what there is here is a desire to change the school restrooms that the Plaintiffs had been using without any factual basis to conclude that doing so is necessary or even advisable.
Beyond that, the Plaintiffs contend that the rational basis test is not the test to be applied to the classification- enacted by Resolution 2. They say that a heightened standard, known as “intermediate scrutiny,” which is applied to classifications based on sex,-should apply here. When intermediate scrutiny is applied, “[plarties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action.” United States v. Virginia,
'The'Supreme Court uses th'e'fol-lowing four factors to determine whether a “new” ' classification requires" heightened scrutiny: (1) whether the class has'been historically “subjected- to discrimination,” Lyng v. Castillo,
Against that backdrop, the Court concludes that an intermediate standard of Equal Protection review applies 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. EOF 23-1-2; see Adkins v. City of New York,
Moreover, as to these Plaintiffs, gender identity is entirely akin to “sex” as that term has beén customarily used in the
• When measured against the legal standard for meeting the intermediate scrutiny test, the Court concludes that the Plaintiffs have a reasonable likelihood' of success on the merits of their claim that the District has not demonstrated that applying Resolution 2 to Plaintiffs’ restroom use actually furthers an important governmental interest.
First; such an application of Resolution 2 would not appear to be necessary to quell any actual or incipient threat, disturbance or other disruption of school activities by the Plaintiffs. There is no record of any such thing. Any arguable disruption to the daily activities of the District that is the result of the passage of Resolution 2 (or the discussions leading up to or resulting from it) would not be attributable to the Plaintiffs, and there is no record evidence of such.
Second, Resolution 2 would appear to do little to address any actual privacy concern of any student" that is not already well
Third, Resolution 2 would not appear to have been necessary in order to fill sorne gap in the District’s code of student conduct or the positive law of Pennsylvania in order to proscribe unlawful malicious “peeping Tom” activity by anyone pretending to be transgender.
Fourth, such application of Resolution 2 also would not appear to be supported by any actual need for students to routinely use the comers of the restrooms for changing into athletic gear from street clothes. Even if pressed by such theoretical possibilities, it would appear to the Court that the dozen or so single-user restrooms sprinkled around the High School would easily fit the bill for private changing. There is also no record evidence that any student uses, has used, or will use any common restroom outside of its structurally privacy-protected areas in any state of undress or for “excretory functions,” which the District advised was the focus of Resolution 2.
In light of where the factual record leads, the Court must next examine the express rationales set forth by the District for applying Resolution 2 to the Plaintiffs’ restroom use.
First, the declarations of the Board members recite that some of them
Second, the District argues that the passage of Resolution 2 was the first “policy” of the District as to the use of student restrooms by transgender students, perhaps intimating that there was never a “status quo” to the contrary.
Fourth, the District asserts that there should not be an issue here because any student may use the single-user restrooms sprinkled around the High School. The District has proposed that those single-user bathrooms therefore provide a “safety valve” of sorts for the Plaintiffs if they do not feel comfortable using the common bathrooms matching their assigned sexes, but inconsistent with everything else, about them. The Plaintiffs, on the other hand, contend that those single-user restrooms also provide a “safety valve” for any other students who may have especially heightened privacy concerns for whatever reason. Given that settled precedent provides that impermissible distinctions by official edict cause tangible Constitutional' harm, Hassan v. City of New York,
This all leads to the conclusion that under the intermediate scrutihy standard, the Plaintiffs have established a reasonable likelihood of success on their Equal Protection claim. That is because on the facts now present in the record, the District has not demonstrated that there is an exceedingly persuasive justification for applying Resolution 2 to common restroom use by the Plaintiffs that is substantially related to an important government interest, since there is insufficient record evidence of any actual threat to any legitimate privacy interests of any student by the Plaintiffs’ Use of such restrooms consistent with their gender identity, or that the set-up of the High School restrooms fails to fully protect the privacy interests of any and every student.
Next, the Court must' consider whether Plaintiffs have shown that they are likely to suffer irreparable harm ab
On the other hand, it would appear that the grant of relief ordered by the Court here would cause relatively little “harm” in thе preliminary injunction sense—if any harm at all—to the District and the High School community. The record reveals that there were no problems with the Plaintiffs’ restroom use prior to the Board actions that led to the passage of Resolution 2. Moredver, the record shows that the physical layout of the bathrooms at the High School appears to fully protect any legitimate privacy interests of both the Plaintiffs and all other bathroom users. And it would appear that the state of affairs advanced by applying Resolution 2 to the Plaintiffs could actually risk further harm to their interests without bene-fitting the District or anyone else.
Finally, in light of the Constitutional import of the commands of the Equal Protection Clause, and in light of the minimal burdens that would flow from requiring the District to return to the mode of bathroom operations as to the Plaintiffs that existed prior to the passage of Resolution 2, which is the status quo ante, the public interest is furthered by
IV.
The Court must also address the Plaintiffs’ likelihood of success on the merits of their Title IX claim. Assessing the likelihood of Plaintiffs’ success on that claim is much more complex as a legal matter, and as noted above, the Court concludes that Plaintiffs are not currently entitled to preliminary injunctive relief as to it.
Title IX proscribes discrimina- ■ tion based on sex in the provision of educational programs funded by or with the assistance of the federal government. 20 U.S.C. § 1681(a). To establish a prima facie case of discrimination under Title IX, a plaintiff must allege (1) that he or she 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,
The Plaintiffs argue that Title IX’s prohibition of discrimination based on sex includes discrimination based on transgender status. They point to the fact that the federal Departments of Education (“DOE”) and of Justice (“DOJ”) have for several years taken the position in Departmental Opinion letters and other communications that discrimination based on “sex” for Title IX purposes includes differentiation based on transgender status, and that differentiations that treat a student contrary to the sex that aligns with his or her gender identity is discrimination based on sex and is prohibited by Title IX.
The Defendants on the other hand contend that Title IX’s definition of “sex” does not go beyond a binary, definition as between men and women, and that Title IX does not reach any differentiation based on gender identity or transgender status.
As to the interpretation of Title IX, its prohibition of discrimination based on sex is generally viewed as being parallel to the similar proscriptions contained in Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of “sex” in the employment context. These statutes’ prohibitions on sex discrimination are analogous. See, e.g., Olmstead v. L.C. ex rel. Zimring,
Courts have long interpreted “sex” for Title VII purposes to go beyond assigned sex as defined by the respective presence of male or female genitalia. For instance, numerous courts have held that Title VII’s prohibition of discrimination on the basis of “sex” includes discrimination on the basis of among other things transgender status, gender nonconformity, sex stereotyping, and sexual orientation. See Oncale v. Sundowner Offshore Services, Inc.,
In light of the most recent, broader readings of the term “sex” both in the context of Title IX claims, Whitaker v. Kenosha Unified Sch. Dist. No. 1, No. 16-943,
By formal regulation, the Department of Education' has stated that segregating school restroom and locker room/shower room facilities based on “sex” is not'prohibited by Title IX so long as those facilities are fundamentally equal. 34 C.F.R. § 106.33- (“Regulation”). Facially, giving the term “sex” in both Title IX and the Regulation the same scope and meaning as the law requires,"it would appear that the Regulation permits discrimination or differentiation on the basis of “sex” so long as it is in the context of the use of substantially equitable school bathrooms, showers and locker rooms. See Si Min Cen v. Atty. Gen.,
This set of circumstances substantially complicates the issues here.'In general, when an agency interprets its own regulation, that agency’s interpretation is entitled to some level of deference Under Auer v. Robbins,
In the Court’s estimation, the answer to that deference question would depend in large part on the effect of the 2017 Guidance on the DOE/DOJ’s prior interpretations. On one hand, the 2017 Guidance could be read as a simple rescission of the prior DOE/DOJ’s 2015 and 2016 Guidance interpretations, which would mean there is now simply no relevant DOE/DOJ interpretation of the Regulation, and therefore nothing to consider deferring to. On the, other hand, as a legal matter, the 2017 Guidance could itself be read as a new interpretation of the Regulation by its obviating the prior interpretations of those Departments. See Thomas Jefferson Univ. v. Shalala,
Those issues are made even more uncertain by the reality that the 2015 and 2016 Guidance documents were issued in the thick of the trial court and appellate litigation of G.G., as was the issuance of the 2017 Guidance, which also impacts the course of the litigation in Texas v. United States,
Auer deference to a federal agency’s interpretation of its own regulation, such as the Regulation, is often inappropriate when the interpretation was issued essentially in furtherance of a litigation position. Bowen v. Georgetown Univ. Hosp.,
On top of all of that is the reality that the 2015 and 2016 Guidance letters were central to the Title IX holdings by the Highland and Carcano courts, and the interrelationship between the language of Title IX and the Regulation as addressed in the 2015 and 2016 Guidance letters was at the heart of the Fourth Circuit’s decision in G.G, 822 F,3d at 723-25. That the term “sex” should be uniformly construed throughout and as between Title IX and the Regulation was not disputed in G.G.,
In light of all of that, what makes the current legal landscape even more unsettled is that the Supreme Court is currently poised to grapple with these very issues in G.G. Recall that in G.G., a transgender student seeking to use the school restroom at his high school consistent with his gender identity had sued his local school board under1 Title IX. The district court initially denied a preliminary injunction that would have permitted him to use the restroom that was consistent with his gender identity. The Fourth Circuit reversed and remanded the case to the district court, which then entered the preliminary injunction. See G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd.,
In August 2016, the Supreme Court granted a stay of the Fourth Circuit’s decision in G.G., granted the G.G. petitioner’s motion for recall of the Fourth Circuit’s mandate, — U.S. -,
• If Auer is retained, should deference .extend to an unpublished agency letter that, among other things, does not carry the force of. law and was adopted in the context of the very dispute in which deference is sought?
• With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?
See
So where does this leave matters in this case? The 2017 Guidance, its impact on the rationales set forth in the 2015 and 2016 Guidance letters, the deference due any of them or other non-revoked prior Departmental interpretations of Title IX, and the interrelationship between Title IX and the Regulation in terms of the consistency of the definition of the term “sex” as between them when applied 'to transgender students and their use of common school bathrooms—all coupled with the current proceedings at the Supreme Court—go to the heart of the Plaintiffs’ ability to demonstrate a reasonable likelihood of success on the merits of their Title IX claim at this inoment in time.
When the Supreme Court. granted its stay and recalled the mandate -of the Fourth Circuit in G.G., that action was necessarily based on several conclusions by that Court as expressed in the necessary vote of a majority of its' Justices: (1) that there was a fair prospect that the G.G. decision will be reversed, see Maryland v. King,
Although the Supreme ‘ Court granted its stay before the’ 2017 Guidance was issued, the stay remains in effect, so this Court must consider the impact of the stay on the Plaintiffs’ ability to demonstrate a reasonable likelihood of success on the Title IX claim.
Added to that mix is the fact that the issues now on the table in the G.G. appeal relate directly to the application of the directives of Title IX and the limitations of the Regulation in the context of the use of common school bathrooms by transgender students. Even assuming that the provisions of Title IX reach discrimination based on gender identity and transgender status within the rubric of “sex discrimination,” the impact of the Regulation on that analytical construct is at the heart of the Fourth Circuit’s opinion in G.G. and is at the center of the issues expressly and by necessary implication now'before the Supreme Court in its review of the Fourth Circuit’s now-stayed decision in G.G.
In that light, this Court simply cannot conclude that the path to relief sought by the Plaintiffs under Title IX is at the moment sufficiently clear such that they have a reasonable likelihood of success on the merits of that claim. Put plainly, the law surrounding -the. Regulation and -its interpretation and application--to Title IX claims relativе to the use of common restrooms by transgender students, including the impact of the 2017 Guidance, is at this moment so clouded with uncertainty that this Court is not in a position to conclude which party in this case has the likelihood of success on the merits of that'statutory claim.
The- Court therefore concludes that the necessary showing of likely success on the merits on the Plaintiffs Title IX claim cannot be, made at this juncture. Plaintiffs’ request for preliminary injunc-tive relief on Title IX grounds will be dented.
V.
The Plaintiffs appear to the Court to be young people seeking to do what young
The Court’s holding here need not and does not decide other questions that will arise over time in other school settings or in other situations. What it does do is apply established legal principles to fundamentally undisputed facts to conclude that the Plaintiffs have shown a reasonable likelihood of success on the merits of their claim that the District’s enforcement of Resolution 2 as to their use of common school restrooms does not afford them equal protection of the law as guaranteed to them by the Fourteenth Amendment.
An appropriate Order will issue.
Notes
In the evening hours of February 22, 2017, the United States Departments of Education and of Justice jointly issued a guidance letter ("2017 Guidance”) that withdrew or revoked the Departmental interpretation of Title IX and a regulation relating specifically to school bathroom use by transgender students that was contained in two previous Departmental guidance letters, one of January 7, 2015 ("2015 Guidance”) and the other of May 13, 2016 (“2016 Guidance”), See February 22, 2017 "Dear Colleague” Letter; available at https://www2.ed.gov/about/offices/ - list/ ocr/lgbt.html As discussed at length in Section IV of this Opinion, the Court has carefully' reviewed and considered- the 2017 Guidance. The Court has also conferred with counsel for all parties regarding the impact of that latest Guidance. Counsel provided the Court , with their respective positions as to the effect of such Guidance on the claims and defenses asserted by the parties in this case and on the disposition of the Motions now pending before this Court, and each advised the Court that they did nof find it necessary to filé further supplemental papers. [Editor’s. Note: Asterisked footnote reference added-by publisher to' the word Opinion to support formatting.] -
. The Commonwealth of Pennsylvania has reissued a birth certificate for Plaintiff Evancho that lists her sex as "female.”
. The District, located in the northwestern segment of Allegheny County, Pennsylvania, is a public school district organized and existing under the Public School Code of 1949, as amended. ECF 43 at 20. It is governed by a nine-member elected Board of School Directors. ECF 43 at ¶ 21. Its chief educational officer is its Superintendent, who is a Commissioned Officer of the Commonwealth, and is by statute an ex officio, non-voting member of the School Board. 24 Pa. Stat. Ann. §§ 10-1078, 1081; ECF 43 at ¶23. The District has about 4,500 students in kindergarten through the 12th grade, which would mean that it has about 1,600 students in grades 9-12 at the High School. It is uncontested that the District is the direct and indirect recipient of federal educational funding. Title IX therefore covers the District's educational programs. ECF 38 at ¶¶ 40, 42, 43, 44; ECF 43 at ¶ 22.
. Solely for simplicity of reference, and because it is the focus of all of the arguments advanced by thе Defendants, the Court will use the term "assigned sex” to refer to the physical characteristics of the external sex organs of a person being referenced. As was Judge Nelson in the Rumble, case, this Court is reluctant to use any descriptive term that can have the unintended effect of reducing any person on any side of any case to a label, but it nonetheless uses this terminology because the District’s asserted rationale for Res: olution 2 turns on that single human characteristic. See Rumble v. Fairview Health Svcs., No. 14-2037,
. Resolution' 2 provides: ‘
This resolution agreed to by a majority of the Board of Directors of the Pine-Richland School District indicates our support to return to the long-standing practice of providing sex specific facility usage. All students ■will have the-choice of 'using either1 the facilities that correspond to their biological sex or unisex facilities. This practice will remain in place until such time' that a policy may be developed and approved. ■
ECF 39 at ¶ 31.
. That we know for sure. Our Court of Appeals has squarely recognized that there may be a Fourteenth Amendment right to privacy in a partially clothed body where as a result of “fact-intensive and context-specific analy-ses” a court concludes that governmental action has resulted in the “public disclosure of highly personal matters representing the most intimate aspects of human affairs,” and where what is publicly disclosed "involves deeply rooted notions of fundamental personal interests derived from the Constitution.” Sée Doe v. Luzerne Cty.,
. Each party has submitted detailed declarations, proposed findings of fact and conclusions of law, principal and rеsponsive briefs, and various supporting reports and documents, all of which form the basis for the recitations, contained in this Opinion. Although the parties vigorously dispute the legal consequences of the factual record before the . Court, the parties agree as to the overall content of that factual record, each having advised the Court that an evidentiaiy hearing was unnecessary. The parties agree that the Court may and should proceed on the record developed by the declarations and other record material advanced by the parties. Having reviewed that record, and having considered the matters advanced by able and thoroughly prepared counsel for all parties in more than five (5) hours of oral argument before the Court, along with detailed supplemental filings of the parties, the Court concurs that the record is sufficiently complete and detailed to proceed with the disposition of the pending Motions. To the extent such denomination is required, the facts and conclusions set forth at length in this Opinion constitute the Court's findings of fact and conclusions of law for purposes of Fed. R. Civ. P. 52.
In addition, the Court granted leave to several amici curiae authorizing them to file briefs in this case. All were in support of the position of the Plaintiffs. ECF 48; ECF 51; ECF 55. Amici included a group of medical professionals who focus on healthcare for transgender youths, ECF 48, a group of senior school administrators from school districts and state-wide educational agencies in 21 states and the District of Columbia, ECF 51, and two Pennsylvania organizations whose energies focus on advocating for the interests of LGBTQ youth. ECF 55. The Court is appreciative of the efforts undertaken by amici and their counsel, who have made helpful contributions to the record in this case.
.The District does not dispute the historical factual assertions in Plaintiffs’ declarations, but does take issue with certain other assertions in them. These include those in which the declarant asserts either motives of the Board or certain statements which might imply a causal link between the passage of Resolution 2 and what the declarant says is its
. From the perspective of the actual record before the Court, that would be a very, very hard case to make. The record reveals no basis to call into question the sincerity and actuality of the gender identities of the Plaintiffs or the reality that the greater schbol community has for some time recognized those gender identities.
. At' graduation, the Plaintiffs will wear the academic garb that matches their gender identities, and the name and descriptive pro- . nouns that Plaintiffs and faculty use daily in reference to them—which match those gender identities—will appear on tHeir diplomas. ECF 38'at ¶¶ 6, 8.
. The record reflects that the Board President received a petition sighed by twelve resident taxpayers of the District dated March 1, 2016. The-petition requested the District’s response to fourteen (14) questions related to ■ the use of District restrooms, showers- and locker rooms by students relative to their "biological sex.” ECF 36-14. The record also reflects that the Superintendent first briefed the Board on these matters in October 2015. ECF 36-8. The Superintendent says that he first learned of a transgender student using a bathroom consistent with his .or her gender identity in the Fall of 2015, though such use had been occurring since the 2013-14 school year. ECF 23-5 at 57; ECF 36-4. ■
.The District Administration’s decision to interact with these students as it did was fully consistent with what appears to have been the core message of the advice provided to the School Board and the Administration by professionals at Children’s Hospital of Pittsburgh. It also happens to be fully consistent with what is set out in. the Plaintiffs' expert’s
. The PowerPoint slide deck of that presentation, ECF 23-7, explains that the professionals from Children’s Hospital stated many of the same professional conclusions as did the psychological expert’s declaration proffered by the Plaintiffs: transgender status is not a "disorder,” nor is it a "choice” or /changeable; those who are transgender can experience “gender dysphoria,” which is a recognized medical diagnosis reflеctive of severe and unremitting emotional pain connected to unresolved tension between gender assigned at birth and gender identity; and transgender people pose no different or heightened risk of harm or danger to anyone else. ECF 43 at ¶ 7.
In support of their position, the Plaintiffs filed the declaration of Dr. Diane Ehrensaft, ECF 24-5, a clinical and developmental psychologist of some 35+ years professional ex- ' perience and engagement. She declared, seemingly in line with the Children’s Hospital presentation, that external sex organs are one (but by no means the only or most accurate) indicia of a person's sex and gender, that being transgender is not a "preference,” that - being transgender has a medically-recognized biological basis, and that it is an innate and non-alterable status.
The Defendants did not counter Dr. Ehre-nsaft’s declaration with any testimonial offering. ECF 36 at 20, n.5. They did refer generally in their papers to an article which in summary reports that (1) the idea that sexual orientation is an innate, biologically-fixed property of humans is not supported by scientific evidence, (2) there, are no compelling causal biological explanations for human sexual orientation, (3) sexual orientation in adolescents is fluid, (4) the concept that gender identity as an innate, fixed property of humans independent of biological sex. is not supported by scientific evidence, (5) 6/10ths of Wo of U.S. adults identify as a gender that does not correspond to their biological sex, (6) there is weak correlation between brain structure and "cross-gender identification," (7) only a minority of children who experience "cross-gender identification” will do so into adolescence or adulthood, (8) there is no evidence that all children "who express gender-atypical thoughts or behavior should be encouraged to become transgender.” See ECF 43 at ¶¶ 1-6, 13; L.S. Mayer, Ph.D. & P.R, McHugh, M.D. Sexuality and Gender: Findings from the Biological, Psychological, and Social Studies, The New Atlantis: A Journal of Technology & Society, Fall 2016, at 7-9 ("Article”). -
The Court has reviewed the Article, even though it carries with it no indicia of admissibility into the evidentiary record under any provision of the Federal Rules of Evidence, nor alternatively, any other indicia of reliability. The Defendants were given the opportunity to make such showings and have not. ECF 44, 63. There is no record evidence of the degree of acceptance in the scientific literature of the Article, its methodology, findings, or the degree to which it was, .subjected to peer review. It also appears from the. Article’s Preface that it was not the result of specific empirical research under the direction of its authors, but was instead a “synthesis of research" by Dr, Mayer. Article- at 4. There is also no record evidence that the Article was consulted or relied upon by the District in enacting Resolution 2, or that its authors were in any way consulted by the Board or District Administrators in those regards.
The District does not advance any reason as to why the summary conclusions in that Article, which appear to be at odds with not only what Dr. Ehrensaft opines, but also with what the medical professionals from Children’s Hospital reported to the.Board at a public meeting, should.be given precedence in this case. What that Article appears.to say at its core is that particularly as to younger people, the surveyed literature indicates that gender identity may well remain unsettled for a longer period of time than is posited by the Plaintiffs.
The record in this case is both robust and unequivocal—the Plaintiffs, who are in late adolescenc.e/early adulthood, have gender identities that appear to be settled. They live consistently with those identities and only
Finally, the Article’s references to sexual orientation do not appear to have anything to do with this case. Rumble,
. One Board Member stated that she had been made aware that in early 2016 several students at the High School were uncomfortable because a transgender student had used the student restroom that was inconsistent with that student's assigned sex, ECF 36-7. Another Board Member reported that he was first aware of the presence of a transgqnder student earlier than that based on a report from his child. ECF 36-8.
. It also does not appear from the record that the Board received a formal educational recommendation from either the District's Superintendent or the High School Principal as to the necessity or appropriateness of the passage or implementation of Resolution 2 as to restroom use by these Plaintiffs. The Superintendent expressed his concern that what he identified to be an uncertain legal landscape could put the District's federal funding at risk if the District changed the status quo as to restroom use via Resolution 2. ECF 36-4 at ¶¶ 15-23.
. A "Resolution 1” was also proposed, which would have maintained the status quo as to bathroom use by Plaintiffs. It failed on a 4-4 vote, ECF 23-4 at 22-23.
. One Board member stated in his declaration that "anatomical” sex was the dividing line for him, which he indicated was "sex assigned at birth.” According to District counsel, that Board Member was the author of Resolution 2. ECF 73 at 177. But “anatomy” is more than that. For instance, Dr, Ehrensaft opined that there are an array of "anatomical” markers that must be considered in assessing both "sex”, and "gender,” including internal reproductive organs, internal and external morphological features, chromosomes, hormones and body chemistry.
.Based on the Court’s review of the meeting transcripts in the record; no Board member offered any such 'bases. Those advocating for differentiation based on-"biological sex” instead referred to what they articulated to be general societal history and what Aéy described as common understandings as to bathroom use. ■
. District counsel even more precisely tied the line of demarcation to excretory functions and the presence of external sexual organs. ECF 73 at 73, 113-118, District counsel also confirmed that there'wore no findings by the Board that for the purposes, of Resolution 2, "biological sex" meant anything more or. Jess than “the primary sexual organs of the student involved," ECF 73 at 176, The record is silent as to аny situation in which the excretory functions of any person in any High School restroom are or had been visually accessible to anyone else. See ECF 23-4 at 40 (Board member recounting that all bathroom usage by students is shielded from view).
In one parent declaration that specifically addresses privacy interests, the declarant notes that he was concerned about shielding his daughter’s unclothed figure "from the view of strangers, particularly strangers of the opposite sex,” ECF 38 at ¶ 23 (emphasis added). That wording may be quite significant, as the fair reading of it is that for reasons important to both that student and her parents, not potentially being exposed to the view of anyone else is of significance. If that is the case, it would appear from the record, that the District has done its duty by its maintenance of high-quality student restrooms with' partitions and locking stall doors, as well as the provision of ten single-user restrooms open to all . students throughout the High School building, all of which provide that level of complete personal seclusion.
. The District argues that the Plaintiffs’ restroom use prior to the Fall of 2015 was not known to or formally sanctioned by the District. That assertion is telling in and of itself: if that were the case, perhaps the most significant evidence that the Plaintiffs’ restroom use was causing no harm or risk of harm to other students or the school environment was that it had been happening for several years without the District’s officials becoming aware of it.
. In support of that proposition, District counsel cited to Doe,
. But that’s what Resolution 2 does. According to District counsel at oral argument, all of the people regularly and ordinarily using the restroom labeled “boys restroom” would ordinarily be referred to as boys. As a matter of elementary logic, if Resolution 2 would steer Ms. Evancho, for instance, to the common restroom labeled “boys room,” it is hard to see how that would not be labeling Ms. Evan-cho as a “boy.”
In the same vein, given the privacy screening in the High School bathrooms, the one physical "part” of the Plaintiffs and everyone else present that would be screened from view would be the only thing the same as among them, and what everyone using the restrooms could actually see would be completely diffеrent as between the Plaintiffs and all the other users.
The District's counsel did not explain how that stark state of affairs would actually be an appropriate course, especially when contrasted with the record, which reveals that the Plaintiffs’ use of restrooms matching their gender identities prior to the passage of Resolution 2 caused no such disruption. This new state of affairs would appear to do little to address any actual privacy concerns of any student not addressed by the physical layout of the bathrooms, but it would swiftly cause a dramatic, negative impact on these Plaintiffs. ECF 73 at 173-74. Simply stated, it appears that the Plaintiffs have a likelihood of proving that the approach advanced by Resolution 2 as to common restroom use would actually place Plaintiffs’ interests at risk without bene-fitting other restroom users.
. For its part, the District's declarations show that when such matters were brought to the attention of the District Administration by or on behalf of a Plaintiff, they were immediately investigated in a serious way. ECF 70-1.
.For all of the reasons stated in this Opinion, the Court concludes that for purposes of applying federal civil pleading rules, the Plaintiffs have made a more than sufficient “showing” in their Complaint of a right to relief under both Title IX and the Equal Protection Clause of the Fourteenth Amendment for purposes of withstanding a motion to dismiss. Fowler v. UPMC Shadyside,
. There was some debate within the Board as to what the “status quo" was. See ECF 23-5 at 38. To be clear, for these purposes, it is the factual state of affairs that existed prior to the passage of Resolution 2. Kos Pharm., Inc. v. Andrx Corp.,
. Preliminary injunctive relief to this extent is a remedy precisely tailored to the demonstrated harm. Swann v. Charlotte-Mecklenburg Bd. of Ed.,
. The Court will address this claim first because the Court cpncludes that the Plaintiffs have a reasonable probability of prevailing on it. Doing so is not inconsistent with the general directive that federal trial courts are to apply the doctrine of "constitutional avoidancе" in order to decide cases on statutory rather than constitutional grounds. See, e.g., Woodall v. Fed. Bureau of Prisons,
. The District’s Solicitor advised the Board that the Equal Protection Clause would be implicated in this case, ECF 23-4 at 10.
. Equal Protection claims require' proof of discriminatory purpose, which includes state action in which the decision maker selected or reaffirmed a course of action at least in part because of its effects on an identifiable group. Doe ex rel Doe v. Lower’ Merion Sch. Dist.,
.The Court uses the term "discrimination” to mean a choice by the District among and between groups of people. Discrimination, Black’s Law Dictionary (10th Ed. 2014), Not all "discriminаtion” is unlawful, as that word means at its core the process of choosing. Whether that "choice” is legally permissible is the issue joined in this case.
. Our Court of Appeals has recognized in cases arising under Title VII of the Civil Rights Act of 1964 that discrimination or differentiation based on gender, and gender nonconformity, is discrimination based on "sex.” Betz v. Temple Health Sys.,
. This Court is not so sure that the Supreme Court has gone as far as the Defendants posit as to the "lightness” of the rational basis test. Even in cases applying the most deferential of standards, there has to be a relationship between the classification adopted and the object to be attained. Any law making a classification must advance a legitimate governmental interest and be rationally related to advancing that interest. Romer,
. This Court does part company with Johnston’s analysis that Glenn was limited to the concept of gender nonconformity, which was divorced from transgender status. The Glenn court considered the definition of "transgender” to equate to rather profound gender nonconformity. Compare Johnston,
. The Court recognizes that, in applying this' intermediate scrutiny test, this - Court comes out differently than the court did in Johnston. This Court believes as Johnston predicted might occur that the decisional law has developed further, and has done so rather swiftly. Further, many of the casеs relied on in Johnston, as to a degree Johnston did itself, came to that conclusion based on the absence of precedent from either the Supreme Court or the relevant regional court of appeals squarely ruling on the question. Johnston,
. One significant way in which this case is factually different from Johnston and Coreano is that those cases also addressed not only restroom use but also, the use of locker rooms and shower rooms in a university setting. This case is more like Highland, in which, the court noted the only issue before it related to restroom use by a single transgender, student. Highland,
Noting that difference in the factual settings between Johnston and Coreano (cases which came to opposite conclusions one to another as to the reach of Title IX) and this case does not mean that this Court concludes that those additional facility uses would or would not lead to a different result in an Equal Protection analysis. It means only that for many- of the context driven , reasons noted by Chief Judge Smith in Doe, facts are what drive, the analysis of the breadth of a Fourteenth Amendment privacy interest, which in turn necessarily affects whether a governmental reason articulated in the .Equal. Protection analysis meets the requisite analytical standard, be it rational basis or intermediate scrutiny.
. Although it should go without saying, any “disruption” tied to the Plaintiffs, seeking, to vindicate their rights in this case amounts to nothing more than the ordinary consequence of such litigation, which, in any event, is a Constitutionallyrprotected activity. See NAACP v. Button,
. In Doe, the facts drove the rule our Court of Appeals applied. Here they are:
Two sheriff's deputies were swarmed by fleas while searching what appeared to bе a crime scene. A decontamination unit was called. All did not go smoothly in setting it up, so the process was moved to a local hospital for decontamination efforts. An involved, flea-attacked female deputy was in the decontamination room there, and another female deputy was with her to examine her for fleas after the afflicted deputy had removed her clothes and taken a shower. The freshly-showered deputy could not find any towels, so she attempted to wrap herself in the thin paper that doctors use to cover their examination tables. Because it was really thin, when it stuck to her wet body it became either transparent or translucent. Doe,
Then two male deputies opened the unlocked wooden door to the decontamination area and not only covertly (at least at first) observed the deputy who was nude, but videotaped what was going on in the decontamination area under the rubric of making a "training tape” as to decontamination operations. There was record evidence that the deputy’s breasts and buttocks were exposed and observed 'by the filmmaking deputies. It also appeared that the video captured a tattoo on the deputy’s back that inferentially revealed that she was involved in a lesbian relationship, That video tape ended up back at the station house, with descriptive commentary about the female deputy’s anatomy included in the “soundtrack” to that video. Id, at 173-74.
After engaging in the requisite fact intensive and context specific analysis, our Court of Appeals had no trouble in concluding that there 'was at minimum a genuine issue of material fact as to whether the freshly-showered, tissue-paper wrapped, naked sheriff’s deputy had a legitimate interest in her bodily privacy when she was both observed by male coworkers in that state, and then videotaped by them, with the video ending up on a public computer file in the sheriff’s office (and labeled with the denominator "XXX’s ass"). The Doe Court also focused on the real risk that the videotape could end up on the Internet. Id. at 177-78.
Despite the reality that there are no similar facts present in this case; the District tells this Court that Doe means that in all cases, there is a constitutional "zone of privacy” that starts at the door to a restroom, and whether there is an actual or actually threatened exposure of intimate bodily parts is irrelevant. Doe held no such thing. Id. at 176-77. What it does say is that there can be a. constitutionally-protected privacy interest in not having parts of your body publicly exposed to others. What Doe also plainly held was that- there were no “bright lines,” id. and it did not draw one at the restroom door or anywhere else. Id.
. Put directly, everyone using the toilets in the "girls room” is doing so in an enclosed stall with a locking door, and everyone using the toilets in the' "boys room” is doing . the same or is using a urinal with privacy screens.
. In Carcano, the Court noted that laws in North Carolina, similar to those existing in Pennsylvania, adequately dealt with potential "Peeping Tom” situations. Carcano,
. To do so in a way that would place them on similar factual footing to the Plaintiffs would take quite a lot. It is undisputed that these Plaintiffs live their lives in all respects consistent only with their gender identities and not their assigned sexes. It is also undisputed that the District treats them that way, that their peers and instructors treat them that way, that their families treat them that way, and that they are in consultation with medical professionals as they undergo medical interventions to fully transition in all physiological respects.
For an “imposter” to take such steps would be an extensive social and medical undertaking. That would appear to the Court to be a really big price to pay in order to engage in intentionally wrongful conduct that is unlawful under state law and contrary to the District's stated expectations as to student conduct. The Court need not determine as a legal matter precisely where. the line would fall between individuals who embody gender identities on the same terms as the Plaintiffs and individuals who are ad hoc imposters, but it can observe with confidence that a one-off, episodic declaration of transgender status in an effort to escape the consequences of engaging in nefarious bathroom behavior would not support a factual finding of tranágender “gender identity” as is present in this case.
. The District also stated that the implementation of Resolution 2 as to the Pl.aintiffs furthered a "fundamental right” of parents to raise children. ECF 73 at 144. It did not explain how or why such rights of other District parents are to take precedence over the same rights of Plaintiffs’ parents, who very much desire that Plaintiffs use restrooms conforming to their gender identities. In some ways, this and some other of the District’s arguments boil down to contending that Resolution 2 is a legally-permissible restriction on Plaintiffs' use of school -bathrooms because - more residents who spoke at School Board meetings desired that outcome than not. Historically, that has not been the basis upon which the application of Constitutional rights is to be determined. Barnette,
.. Of note, Resolution 2’s text disclaims that it is a "policy,” in that it says the "practice” it sets forth will "remain in place” until a "policy” is "developed.” Also of note is that the record contains no factual underpinning for that Resolution’s recitation, that the District was "returning” to a "long-standing practice” of providing sex-specific facility usage.
. Even if the Court were to apply the District’s preferred standard, rational basis review, it would likely come to the same conclusion as to Plaintiffs’ likelihood of success on the merits. As discussed above, under rational basis review, the Court must "uphold the legislative classification so long as it bears a rational relation to some legitimate end.” Romer,
. Differentiation that causes harm can be a violation of the Equal Protection Clause in and of itself, but it does not by definition rise to irreparable harm. It is, however, an important consideration in the preliminary injunction analysis. See Constructors Assoc. of W. Pa. v. Kreps,
. Courts have long recognized, for example, that a bare equal protection violation is sufficient to constitute an injury in fact for the purposes of establishing Article III standing because unequal treatment under the law is harm unto itself.'See, e.g., Hassan,
. This perspective is not precluded by the fact that Title IX does not textually provide that discrimination on the basis of transgender status .is prohibited. See Jackson v. Birmingham Bd. of Educ., 544 U.S, 167, 175,
. These interpretations were not withdrawn by the 2017 Guidance.
. But that -is not the beginning nor the end of the analysis necessary here, since as the Supreme Court observed in construing the reach of Title VII’s prohibition of sex discrimination in Oncale v. Sundowner Offshore Svcs., Inc.,
. The United States is not a party to the G.G. case. On the evening the 2017 Guidance was issued, and one day before the Respondent's merits brief was to be filed in the Supreme Court, the Deputy Solicitor General transmitted a copy of the, 2017 Guidance to the Supreme Court and asked that it be distributed to the Justices. It would therefore appear that the Unitéd States believes that the 2017 Guidance could materially impact that litigation.
. The Supreme Court’s grant of review in G.G. relates only to the Title IX claim in that case, and therefore directly impacts only the analysis of the likelihood of success on the statutory claim here. The situation before Judge Schroeder in Coreano, where he concluded that the status of G.G. at the Supreme Court did not strip G.G. of decisional vitality in his deciding Cárcano, is different from that present here. His is an inferior court in the Fourth Circuit, and he concluded that in the absence of the Fourth Circuit’s G.G. judgment actually being reversed or vacated, he . was nonetheless obligated to adhere to it in considering the Title.IX clаim in that case. Carcano,
. In this Court’s February 23, 2017 status conference with all counsel relative to the 2017 Guidance, the District’s counsel took the position that the situation in the G.G. appeal and the issuance of the 2017 Guidance also affected the analysis of the Plaintiffs’ Equal Protection claim. An examination of the decision of the Court, of Appeals in G.G,, ,the questions presented for review by the Su
. Consistent with Fed. R. Civ. P. 65(c), the Court will order that Plaintiffs post with the Clerk security in an acceptable form in the amount of $500. Given that the injunctive order here restores and preserves the status quo, and does so in a case not involving the expenditure of money by the Defendants in order to comply with this Court's Order, the need for security is minimal, and security in such amount is sufficient to fulfill the purposes for which it is required by law.