MEMORANDUM OPINION
I.Introduction
This сase arises from Plaintiff Seamus Johnston’s allegations that Defendants discriminated against him based on his sex and his transgender status
Pending before the Court in this matter is Defendants’ motion to dismiss (ECF No. 9) the second amended complaint (ECF No. 7) pursuant to Federal Rule of Civil Procedure 12(b)(6). Thus, the issue this Court must decide is whether Plaintiff has stated a cognizable claim of discrimination on the basis of sex under the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments.
II. Jurisdiction
The Court has jurisdiction over the federal constitutional and statutory claims pursuant to 28 U.S.C. §§ 1331, 1343 and 42 U.S.C. § 1983. The Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. Venue is proper under 28 U.S.C. § 1391(b) because a substantial portion of the events giving rise to the claims occurred in the Western District of Pennsylvania.
III. Background
Plaintiff alleges the following facts in his second amended complaint, which the
Beginning in August 2010, Plaintiff underwent counseling related to his gender identity and was diagnosed by his psychotherapist with Gender Identity Disorder (“GID”).
Beginning in 2009, as part of Plaintiffs transition to living as a male, he “amended his identity documents and records to reflect his male gender identity.” (Id. ¶ 27). In 2010, Plaintiff obtained a common law name change to “Seamus Samuel Padraig Johnston.” (Id. ¶ 28). In October 2011, Plaintiff amended the gender marker to male on his Pennsylvania driver’s license. (Id. 1129). In July 2011, Plaintiff registered with the Selective Service. (Id. ¶ 30). In February 2012, Plaintiff amended the gender marker to male on his United States passport. (Id. ¶ 31). In November 2013, Plaintiff amended the gender marker to male in his Social Security record. (Id. ¶ 32).
Plaintiff attended the University of Pittsburgh at Johnstown (“UPJ” or “University”) as an undergraduate Computer Science major for five semesters from 2009 to 2011. (Id. ¶ 7). Plaintiff received an REB Commuter Scholarship, a four-year scholarship covering full tuition, fees, and books, which he maintained for the entire time he was enrolled at UPJ. (Id. ¶¶ 35-36).
When Plaintiff applied for admission to UPJ in March 2009, he listed his sex as “female” on his application form. (Id. ¶¶ 33-34). However, when Plaintiff began attending classes at UPJ in August 2009, and at all times thereafter, Plaintiff “consistently lived as male.” (Id. ¶¶ 37-38). In August 2011, Plaintiff requested that UPJ change the,gender marker to male in his school records.
While enrolled as a student at UPJ, Plaintiff consistently used the men’s restrooms on campus. (Id. ¶ 42). During the spring 2011 semester, Plaintiff enrolled in a men’s weight training class, which was attended only by men. (Id. ¶ 43). Plaintiff used the men’s locker room for the men’s weight training class throughout the spring 2011 semester. (Id. ¶ 44). Plaintiff again enrolled in a men’s weight training class for the fall 2011 semester, and again began using the men’s locker room. (Id. ¶ 45). Plaintiff used the locker room approximately five times between the end of August and mid-September without incident. (Id.).
However, on September 19, 2011, Plaintiff met with Teresa Horner, Executive Director of Health and Wellness Services at UPJ, who informed Plaintiff that he could no longer use the men’s locker room. (Id. ¶¶ 46^47). Instead, Plaintiff agreed to use a unisex locker room at the Sports Center normally reserved for referees. (Id. ¶ 47). On September 26, 2011, Jonathan Wescott, UPJ Vice President of Student Affairs, informed Plaintiff that “he would be allowed to use the men’s locker room if his student records were updated from female to male.” (Id. ¶ 50). On September 29, 2011, Marylin Alberter, UPJ Registrar, informed Plaintiff that, in order to change the sex4designation on his student records, Plaintiff must provide either a court order or a new birth certificate reflecting Plaintiffs current gender. (Id. ¶¶ 51-52). On October 19, 2011, Plaintiff registered a complaint with Jem Spectar, UPJ President, to protest his exclusion from the men’s locker room. (Id. ¶ 57). Spectar responded by a letter dated October 21, 2011, confirming that, in order for Plaintiff to have access to the men’s locker room, he must officially change his gender in UPJ’s records by presenting a court order or birth certificate. (Id. ¶ 58).
In October 2011, Plaintiff began reusing the men’s locker room, using the locker room six times between October 24, 2011, and November 14, 2011, without incident. (Id. ¶ 59). On November 16, 2011, the campus police issued a citation to Plaintiff for disorderly conduct because he used the men’s locker room. (Id. ¶ 60). Despite receiving this citation, Plaintiff continued to use the men’s locker room. (Id. ¶ 61). On November 21, 2011, Plaintiff received a second citation for disorderly conduct for using the men’s locker room. (Id. ¶62). During this confrontation, Campus Police Chief Kevin Grady informed Plaintiff that, if he continued to use the men’s locker room, he would be arrested and taken into custody. (Id. ¶ 62). On November 28, 2011, Jacob W. Harper, Coordinator for the UPJ Office of Student Conduct and Conflict Resolution, issued an interim persona non grata against Plaintiff, barring him from the Sports Center due to his continued use of the men’s locker room. (Id. ¶¶ 68, 65). Additionally, on November 21, 2011, Harper notified Plaintiff that disciplinary charges had been filed against him and that he was required to attend a disciplinary hearing on November 23, 2011, which was subsequently rescheduled for December 2, 2011. (Id. ¶ 64).
On November 28, 2011, Plaintiff again used the men’s locker room, and Campus Police took Plaintiff into custody and issued another disorderly conduct citation. (Id. ¶ 66). On December 2, 2011, at a disciplinary hearing, Plaintiff was found guilty of three charges resulting from alleged violations of the Student Code of Conduct, and was instructed that he was
Nevertheless, on December 7, 2011, Plaintiff used a men’s restroom in the Wellness Center to change his clothes, and Campus Police confronted Plaintiff, informing him that he was not to use any men’s restrooms on campus. (Id. ¶ 67). Then, on December 15, 2011, Plaintiff used a men’s restroom in Biddle Hall, an academic building on the UPJ campus. (Id. IT 70). Officer Matthew Updyke confronted Plaintiff, reminded Plaintiff that he was not permitted to enter any men’s restrooms on campus, and informed Plaintiff that he intended to file a complaint with the University Hearing Board. (Id. ¶ 70). On December 20, 2011, Harper informed Plaintiff that, due to his use of the men’s restrooms on December 7 and Dеcember 15, Plaintiff would be placed on interim disciplinary suspension and barred under an interim persona non grata from all UPJ property pending an adjudicatory hearing. (Id. ¶ 71). A disciplinary hearing was held on January 24, 2012, before a panel of students, who found Plaintiff ■ guilty of exhibiting disorderly, lewd, or indecent behavior; failing to comply with lawful directions of a University official; and entering University facilities without authorization. (Id. ¶ 72). As a result, Plaintiff was expelled from UPJ and prohibited from accessing all UPJ property. (Id. ¶ 72). Following a “sanction justification review,” Dr. Gyure upheld Plaintiffs expulsion. (Id. ¶ 73). Similarly, the University Appeals Board reviewed the case and upheld the disciplinary sanctions against Plaintiff. (Id. ¶¶ 74-75).
Due to his expulsion from UPJ, Plaintiff lost his scholarship. (Id. ¶ 76). Additionally, on December 2, 2011, the UPJ Campus Police filed a criminal complaint with the District Attorney’s office, which charged Plaintiff with indecent exposure, criminal trespass, and disorderly conduct. (Id. ¶ 77). On May 30, 2013, Plaintiff pled guilty to the reduced charges of trespass and disorderly conduct and was sentenced to six months’ probation and a fine of approximately $600. (Id. ¶ 78).
Following Plaintiffs expulsion, the FBI investigated Plaintiff related to a series of bomb threats made against the University of Pittsburgh. (Id. ¶ 83). Plaintiff alleges that “the University gave [Plaintiffl’s name to the FBI in retaliation for exercising his right to complain about the University’s discriminatory conduct.” (Id. ¶ 84). Plaintiff also alleges that he suffers significant emotional distress as a result of Defendants’ discriminatory conduct, including humiliation, stress, depression, and anxiety. (Id. ¶ 85). Further, and among other things, Plaintiff alleges that he suffers from Post-Traumatic Stress Disorder, requiring counseling treatment, as a result of Defendants’ conduct. (Id. ¶ 86).
Plaintiff filed a four-count pro se complaint in this Court on October 29, 2013. (ECF No. 2). The matter was referred to United States Magistrate Judge Pesto, who screened the complaint pursuant to 28 U.S.C. § 1915A. Magistrate Judge Pesto filed a report and recommendation (ECF No. 3), recommending that the federal count of Plaintiffs complaint
'Plaintiff then filed an amended complaint (ECF No. 6) on January 8, 2014, and a second amended complaint (ECF No. 7) on January 14, 2014.
IV. Standard of Review
Defendants have moved ' to dismiss Plaintiffs second amended complaint pursuant to Rule 12(b)(6). The Federal Rulеs of Civil Procedure require that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) allows a party to seek dismissal of a complaint or any portion of a complaint for failure to state a claim upon which relief can be granted. Although the federal pleading standard has been “in the forefront of jurisprudence in recent years,” the standard of review for a Rule 12(b)(6) challenge is now well established. Fowler v. UPMC Shadyside,
In determining the sufficiency of a complaint, a district court must conduct a two-part analysis. First, the court must separate the factual matters averred from the legal conclusions asserted. See Fowler,
Moreover, the court must construe the alleged facts, and draw all inferences gleaned therefrom, in the light most favorable to the non-moving party. See id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc.,
Ultimately, whether a plaintiff has shown a “plausible claim for reliеf’ is a “context specific” inquiry that requires the
V. Discussion
Plaintiff has asserted five claims for relief in his second amended complaint. Count One asserts a claim against all Defendants pursuant to 42 U.S.C. § 1983, alleging discrimination and retaliation in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. (ECF No. 7 ¶¶ 92-98). Specifically, Plaintiff alleges that “Defendants, without justification, treated Plaintiff differently, from other similarly situated students on the basis of sex, including his transgender status and perceived failure to conform to gender stereotypes,” and that Defendants retaliated against Plaintiff for asserting his constitutional right to be free from discrimination based on sex. (Id. ¶¶ 93, 96). Count Two asserts a claim against all Defendants pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., alleging discrimination and retaliation on the basis of sex in an education program or activity receiving federal funds. (Id. at 16-17, ¶¶ 1-10).
A. Equal Protection Claim
Plaintiff asserts his first claim for relief, a Fourteenth Amendment Equal Protection claim, under 42 U.S.C. § 1983, which provides a remedy for the deprivation of a person’s constitutional rights. See Dipippa v. Union Sch. Dist.,
The Equal Protection Clause prohibits a State from “denying] to any person within its jurisdiction the equal protection of thе laws.” U.S. Const, amend. XIV, § 1. To state a claim for sex discrimination under the Equal Protection Clause pursuant to § 1983, a plaintiff, must allege the existence of purposeful discrimination because of his sex. See Epps v. City of Pittsburgh,
“When reviewing a claim that [state] action violates the Equal Protection Clause, the Court must first determine the correct standard of review.” Hunters United for Sunday Hunting v. Pennsylvania Game Comm'n No. 1:13-cv-01939,
Plaintiff alleges that Defendants violated the Equal Protection Clause by “treating] Plaintiff differently from other similarly situated students on the basis of his sex,
Defendants argue that Plaintiffs complaint fails to state a cognizable Equal Protection Claim as a matter of law. (ECF No. 10 at 7). First, Defendants contend that “transgender” is not a suspect classification under the Equal Protection Clause and that rational basis review therefore applies. (Id.). According to Defendants, UPJ had a rational basis in refusing to permit Plaintiff to use male locker rooms, showers, and bathrooms-namely, to protect the privacy rights of students at UPJ. (Id.). Defendants assert that students have a constitutional right to privacy, which includes “the right to disrobe and perform personal bodily functions out of the presence of members of the opposite biological sex.” (Id. at 7-8). Defendants also argue that, even if an intermediate standard of review applies to the alleged sex-based discrimination in this case, UPJ’s conduct would still pass constitutional muster. (Id. at 8). Specifically, Defendants assert that UPJ’s conduct in refusing to permit Plaintiff, “a biological female, to disrobe and shower with male students advance[s] an important purpose.” (Id.).
At the outset, the Court notes that society’s views of gender, gender identity, sex, and sexual orientation have significantly evolved in recent years. Likewise, the Court is mindful that the legal landscape is transforming as it relates to gender identify, sexual orientation, and similar issues, especially in the context of providing expanded legal rights. Within the context of these expanding rights and protections arises the profound question of self-identify, as exemplified by this case. But, while this case arises out of a climate of changing legal and social perceptions related to sex and gender, the question presented is relatively narrow and the applicable legal principles are well-settled. At the heart of this case are two important but competing interests. On the one hand is Plaintiffs interest in performing some of life’s most basic and routine functions, which tаke place in restrooms and locker rooms, in an environment consistent with his male gender identity. On the other hand is the University’s related interest in providing its students with a safe and comfortable environment for performing these same life functions consistent with society’s long-held tradition of performing such functions in sex-segregated spaces based on biological or birth sex. Additionally, the Court finds controlling the unique contours under which this case arises. Namely, the context is a public university, whose mission is primarily pedagogical, but which is also tasked with providing safe and appropriate facilities for all of its stúdents. With these considerations in mind, the Court will apply the appropriate legal principles to the alleged facts of this case.
First, neither the United States Supreme Court nor the Third Circuit Court of Appeals has recognized transgender as a suspect classification under the Equal Protection Clause. Accordingly, Plaintiffs discrimination claim is reviewed under the rational basis standard. This finding is consistent with numerous other courts that have considered allegations of discrimination by transgender individuals. See, e.g., Etsitty v. Utah Transit Auth.,
Nevertheless, even if a heightened standard of review were to apply, the result would be the same as under rational basis review. Here, UPJ’s policy of segregating its bathroom and locker room facilities on the basis of birth sex is “substantially related to a sufficiently important government interest.” Glenn v. Brumby,
The Supreme Court has acknowledged that not all classifications based on sex are constitutionally impermissible: “The heightened review standard our precedent establishes does not make sex a proscribed classification ... Physical difference between men and women, however, are enduring: ‘[t]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.’ ” United States v. Virginia,
Plaintiff also appears to argue that he was discriminated on the basis of his “male” sex, not simply on his status as a transgender male. Plaintiff contends, the “complaint alleges sex discrimination by Defendants.” (ECF No. 19 at 11). Plaintiff asserts that the complaint alleges “acts of discrimination ‘because of his sex’ ... [including] the University’s refusal to permit [Plaintiff], a male transgender individual, access to facilities сonsistent with his male gender.” (Id.). However, these allegations do not state a cognizable claim for sex discrimination.
Many courts have defined the term “sex” in the context of the Equal Protection Clause, as well as anti-discrimination statutes such as Title VII, as the biological sex assigned to a person at birth.
The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder, i.e., a person born with a male body who believes himself to be female, or a person born with a female body who believes herself to be male; a prohibition against discrimination based on an individual’s sex is not synonymous with a prohibition against discrimination based on an individual’s sexual identity disorder or discontent with the sex into which they were born.
Ulane v. E. Airlines, Inc.,
While Plaintiff alleges that he is a “male,” the complaint also alleges that Plaintiff was assigned the sex of “female” at birth. Importantly, Plaintiff has not alleged that he has undergone a sex change. Thus, while Plaintiff might identify his gender as male, his birth sex is female. It is this fact — that Plaintiff was born a biological female, as alleged in the complaint — that is fatal to Plaintiffs sex discrimination claim. Regardless of how gender and gender identity are defined, the law recognizes certain distinctions between male and female on the basis of birth sex. Thus, even though Plaintiff is a transgender male, his sex is female, a fact alleged in Plaintiffs complaint and a fact that has legal significance in light of Plaintiffs discrimination claim. Plaintiff alleges that he is “medically” a male, but provides no. further averments to support that assertion. Nevertheless, the complaint alleges two facts that belie his assertion that his sex — as distinct from his gender — is male. First, Plaintiff alleges that he was assigned the sex of female at birth. To further this point, Plaintiff alleges that he did not become aware of his male gender identity until he was 9, and he did not start presenting as a male until sometime later, around the time he matriculated as a student at UPJ. Similarly, based on the allegations in the complaint, it is reasonable to infer that Plaintiffs birth certificate indicates that he is a female. Likewise, the complaint does not allege that Plaintiff has undergone any kind of sex reassignment surgery.
Second, according to the complaint, when plaintiff applied to UPJ, he stated that he was a female. Likewise, the complaint alleges that Plaintiff did not comply with UPJ’s procedures to update his school
B. Title IX Claim
Next, the Court will address Plaintiffs claim for discrimination and retaliation in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”). According to the complaint, Defendants discriminated against Plaintiff in violation of Title IX “because of his sex, including his transgender status and his perceived failure to conform to gender stereotypes.” (ECF No. 7 at 17, ¶ 7; ECF No. 19 at 11). Thus, the complaint alleges that Defendants discriminated against Plaintiff both on the basis' of his transgender status and on his perceived gender nonconformity, and that such discrimination violates Title IX’s prohibition of discrimination on the basis of sex. (ECF No. 19 at 26). Specifically, the complaint avers that, while “non-transgender male students ... were permitted to use the men’s locker room and restroom facilities on campus,” Plaintiff “was singled out ánd denied access to the men’s locker rooms and restrooms.” (ECF No. 7 at 17, ¶¶ 5-6). Additionally, the comрlaint alleges that Defendants retaliated against Plaintiff for asserting his statutory right to be free from discrimination based on sex. (Id. at 17, ¶ 8).
Defendants argue that Plaintiffs complaint fails to state a cognizable claim for relief under Title IX as a matter of law. (ECF No. 10 at 9). Defendants first argue that Plaintiff cannot assert a transgender status claim because the plain language of Title IX does not prohibit discrimination on the basis of gender identity. (Id.). Defendants contend that, while Title IX prohibits discrimination in education programs on the basis of sex, the statute does not mention gender identity, gender expression, or gender transition. (Id.). Additionally, Defendants point to the legislative history of the statute, arguing that “the intent of Congress in enacting Title IX was to open up educational opportunities for girls and women in education,” and asserting that “[g]ender identification, of whatever description, is not equivalent to ‘sex’ as that term is used in the statute or the regulations.” (Id. at 9-10). Second, Defendants argue that Plaintiffs allegations do not constitute “sex stereotyping” under Price Waterhouse v. Hopkins,
Having carefully reviewed the relevant language of Title IX and the applicable case law, and having considered the erudite arguments of counsel, the Court finds that Plaintiff has failed to state a cognizable claim for discrimination under Title IX. Simply stated, Plaintiff has not alleged facts showing that Defendants unlawfully discriminated against him on the basis of sex in violation of Title IX. Specifically, the University’s policy of requiring students to use sex-segregated bathroom and locker room facilities based on students’ natal or birth sex,
Title IX prohibits sex discrimination in educational programs that receive federal funding:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
20 U.S.C. § 1681(a); see Grove City Coll., v. Bell,
As stated above, Title IX prohibits discrimination “on the basis of sex.” The parties disрute whether discrimination “on the basis of sex” applies to claims of discrimination by transgender students. This issue is one of first impression in the Third Circuit, and it does not appear that any federal courts have addressed the precise question of whether a student can assert a claim for discrimination on the basis of his transgender status under Title IX. Thus, the parties understandably resort to rély-ing on cases in the Title VII context to construct the appropriate framework to answer this question. Defendants cite several cases holding that discrimination based on transgender status is not discrimination “on the basis of sex” under Title VII. Plaintiff, on the other hand, cites several cases holding that transgender individuals can allege a cognizable Title VII claim for discrimination under a sex stereotyping theory.
1. Transgender Status Claim
First, Title' IX does not prohibit discrimination on the basis of transgender itself because transgender is not a protected characteristic under the statute. The Court has found no federal court case that has squarely decided this issue in the Title IX context.
In one of the first cases considering whether Title VII protects transgender individuals, the Seventh Circuit, in Ulane v. Eastern Airlines, Inc.,
The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder, i.e., a person born with a male body who believes himself to be female, or a person born with a female body who believes herself to be male; a prohibition against discrimination based on an individual’s sex is not synonymous with a prohibition against discrimination on an individual’s sexual identity disorder or discontent with the sex into which they were born.
Ulane,
Similarly, the Eighth Circuit has concluded that “the word ‘sex’ in Title VII is to be given its traditional definition, rather than an expansive interpretation. Because Congress has not shown an intention to protect transsexuals, we hold that discrimination based on one’s transsexualism does not fall within the protective purview of the Act.”' Sommers v. Budget Marketing, Inc.,
In a recent transgender restroom usage case, the Tenth Circuit held that discrimination based on an individual’s transgender status is not discrimination “because of sex” under Title VII and that transgender individuals are not members of a protected class under the Fourteenth Amendment’s Equal Protection Clause. Etsitty v. Utah Transit Auth.,
[Discrimination against a transsexual based on the person’s- status as a transsexual is not discrimination because of sex under Title VII. In reaching this eonclusion, this court recognizes it is the plain language of the statutе and not the primary intent of Congress that guides our interpretation of Title VII.... [Tjhere is nothing in the [Congressional] record to support the conclusion that the plain meaning of “sex” encompasses anything more than male and female. In light of the traditional binary conception of sex, transsexuals may not claim protection under Title VII from discrimination based solely on their status as a transsexual.
Id. at 1221-22 (but noting that “[scientific research may someday cause a shift in the plain meaning of the term ‘sex’ so that it extends beyond the two starkly defined categories of male and female”).
These cases, along with many others, make clear that Title VII does not provide an avenue for a discrimination claim on the basis of transgender status. Similarly, Title IX’s language does not provide a basis for a transgender status claim.
This Court’s narrow view of the meaning of the statutory term “sex” is also supported by the legislative history and application of Title IX in this Circuit’s case law. Congress’s purpose in enacting Title IX was to establish equal educational opportunities for women and men in education. Lothes v. Butler Cnty. Juvenile Rehab. Ctr.,
Race is a suspect classification under the Constitution, but the Supreme Court has declined to so characterize gender. We are committed to the concept that there is no fundamental difference between races and therefore, in justice, there can be no dissimilar treatment. But there are differences between the sexes which may, in limited circumstances, justify disparity in law. As the Supreme Court has said: “(g)ender has never beеn rejected as an impermissible classification in all instances.”
Vorchheimer,
Additionally, this interpretation of Title IX is consistent with the application of similar language in Title VII, as explained in the Court’s review of the applicable cases above. See Dawn L. v. Greater Johnstown Sch. Dist.,
Finally, the Court finds particularly compelling that the regulations implementing Title IX explicitly permit educational institutions subject to Title IX to provide separate toilet, locker room, and shower facilities on the basis of sex:
A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be compаrable to such facilities provided for students of the other sex.
34 C.F.R. § 106.33. The regulations implementing Title IX also provide that nothing in the regulations “shall prevent a recipient from considering an employee’s sex in relation to employment in a locker room or toilet facility used only by members of one sex.” 34 C.F.R. § 106.61. Indeed, the statute itself allows for sex-segregated living spaces:
Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes.
20 U.S.C. § 1686. Thus, Title IX and its implementing regulations clearly permit schools to provide students with certain sex-segregated spaces, including bathroom and locker room facilities, to perform certain private activities and bodily functions consistent with an individual’s birth sex.
The Court finds the conclusion of the Third Circuit in Vorchheimer — a case involving both an Equal Protection Claim challenge and a Title IX challenge to sex-segregated schools — pertinent here, as modified to the facts and issues of this case:
The gravamen of plaintiffs case is [his] desire to [use] a specific [restroom or locker room] based on its particular appeal to [him]. [He] believes that the choice should not be denied [him] because of an educational policy with which [he] does not agree.
We are not unsympathetic with [his] desire to have an expanded freedom of choice, but its cost should not bе overlooked. If [he] were to prevail, then all [sex-segregated restrooms and locker rooms] would have to be abolished. The absence of [sex-segregated spaces] would stifle the ability of the [University] to continue with a respected educational methodology. It follows too that those students and parents who prefer an education [with sex segregated restrooms and locker rooms] would be denied their freedom of choice....
It is not for us to pass upon the wisdom of segregating boys and girls in [théir use of restrooms and locker rooms],
We are concerned not with the desirability of the practice but only its constitutionality. Once that threshold has been passed, it is the [University’s] responsibility to determine the best methods of accomplishing its mission.
Vorchheimer v. Sch. Dist. of Philadelphia,
Regarding Plaintiffs sex stereotyping claim, Defendants argue that Plaintiffs claims must be evaluated under the framework of the Third Circuit’s precedents in Bibby v. Coca Cola Bottling Co.,
The court identified a variety of situations where same-sex harassment could be considered discrimination “because of sex,” including where the harasser sexually desires the victim, where there is no sexual attraction but where the harasser displays hostility to the presence of a particular sex in the workplace, and where the harasser’s conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender. Id. at 262. This third situation — where a harasser is acting to punish the victim’s noncompliance with gender stereotypes — is based on the Supreme Court’s decision in Price Waterhouse v. Hopkins,
In Price Waterhouse, the Supreme Court held that a woman who was denied a promotion because she failed to conform to gender stereotypes had a cognizable claim for discrimination under Title VTI because she was discriminated against “because of sex.” The Court explained that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’ ” Price Waterhouse,
Likewise, in Prowel v. Wise Business Forms, Inc., the Third Circuit considered whether a plaintiff had provided sufficient facts for his claim of gender stereotyping under Title VII. Relying on Bibby, the Court again noted that, to bring a claim for discrimination under Ti-
The Court will evaluate the facts alleged by Plaintiff in his complaint under the Bibby and Prowel cases of this Circuit.
Here, Plaintiff has not alleged that Defendants discriminated against him because of the way he looked, acted, or spoke. Instead, Plaintiff alleges only that the University refused to permit him to use the bathrooms and locker rooms consistent with his gender identity rather than his birth sex. Such an allegation is insufficient to state a claim for discrimination under a sex stereotyping theory. See, e.g., Eure v. Sage Corp.,
Indeed, Plaintiff alleges that the University permitted him to live in conformance with his male gender identity in all material respects, with the one exception of the University’s policy regarding bathroom and locker room usage. Plaintiff alleges that he presented as a male, and he does not allege that he was еver harassed or discriminated against by the University because he dressed,.spoke, or behaved like a man, or because he did not dress, act, or speak like a woman. Likewise, Plaintiff avers that he was permitted to enroll in a men’s weight training course; the University accepted his name change to a traditional male name and updated his student records to reflect the name change; and the University treated him in conformity with his male gender identity in all other respects. Plaintiff simply has not alleged that Defendants discriminated against him because he did not behave, walk, talk, or dress in a manner inconsistent with any preconceived notions of gender stereotypes. See Price Waterhouse,
Instead, the University simply classified him based on his birth sex and prohibited him from entering sex-segregated spaces based on that classification, for the sole purpose of enforcing its policy of sex-segregated bathrooms and locker rooms. Plaintiff argues that Defendants treated him differently from other males because he was transgender. This contention is simply inconsistent with his other allegations that the University permitted him, without harassment or discrimination, to dress like a man, act like a man, change his name to reflect his male gender, and enroll in classes designated for males. Plaintiffs sole contention of discrimination is that UPJ forbade him from using University bathrooms and locker rooms consistent with his male gender identity rather than his female birth sex. This allegation simply does not constitutе a claim for sex stereotyping.
Furthermore, courts that have considered similar claims have consistently concluded that requiring individuals to use bathrooms consistent with their birth or biological sex rather than their gender identity is not discriminatory conduct in violation of federal and state constitutions and statutes. See, e.g., Johnson v. Fresh Mark, Inc.,
For these reasons, the Court finds that Plaintiff has failed to state a plausible claim for relief under Title IX, and will therefore dismiss Count II of Plaintiffs second amended complaint.
C. Retaliation Claims
Plaintiffs retaliation claims under the Equal Protection Clause and Title IX fare no better than the discrimination claims. In a Title IX discrimination case, a plaintiff may assert a private right of action “where the funding recipient retaliates against an individual because he has complained about sex discrimination.” Dawn L. v. Greater Johnstown Sch. Dist.,
Plaintiff has failed to allege sufficient facts to plausibly establish a claim for retaliation. In his complaint, Plaintiff simply alleges that “following his expulsion,” he was “investigated by the FBI for potential involvement in a series of bomb threats against the University” and that “the University gave Mr. Johnston’s name to the FBI in retaliation for exercising his right to complain about the University’s discriminatory conduct.” (ECF No. 7 ¶¶ 83-84). Plaintiffs complaint fails to allege sufficiently that the adverse action was motivated by retaliatory animus or that any animus had a determinative effect on the complained-of decision. As such, Plaintiffs claims for retaliation under both the Equal Protection Clause of the Fourteenth Amendment and Title IX will be dismissed.
D. State Law Claims
In addition to his federal law claims for discrimination, Plaintiff has asserted three state law claims in his second amended сomplaint. Count Three asserts a claim for discrimination and retaliation under the Pennsylvania Human Relations Act, 43 Pa. Cons.Stat. § 955. Count Four asserts a claim for discrimination and retaliation under the Pennsylvania Fair Educational Opportunities Act, 24 Pa. Cons.Stat. § 5001 et seq. Count Five asserts a common law breach of contract claim related to Plaintiffs REB Commuter Scholarship and UPJ’s non-discrimination policy.
Because the Court grants Defendants’ motion to dismiss Plaintiffs federal claims, the Court declines to exercise supplemental jurisdiction over Plaintiffs state law claims and will dismiss those claims without prejudice. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if ... the district court has dismissed all claims over which it has original jurisdiction.”); United Mine Workers v. Gibbs,
VI. Conclusion
Plaintiff has failed to state a plausible claim for relief for discrimination or retaliation under either the Equal Protection Clause or Title IX.
An appropriate order follows.
ORDER
AND NOW, this 31st day of March 2015, upon consideration of Defendants’ motion to dismiss (ECF No. 9), and for the reasons set forth in the accompanying memorandum,
Notes
. As will be explained below, Plaintiff was born a female but identifies as a transgender male.
. Because the Court dismisses both of Plaintiff's federal question claims, the Court will decline to exercise jurisdiction over Plaintiff’s state law claims and thus will not discuss those claims in this memorandum opinion.
. Plaintiff avers, “Gender identity is a person's deeply rooted understanding of oneself as male or female. Gender identity is typically established at a very early age and cannot be changed.” (ECF No. 7 ¶ 19).
. "Gender identity disorder is most simply described as an individual’s confusion or discomfort about his or her sexual status as a biological male or female.” Farmer v. Hawk-Sawyer,
. As Plaintiff explains in his second amended complaint, "Testosterone causes development of male secondary sex characteristics, including increased muscle mass, deepening of the . voice, and facial and body hair growth.” (ECF No. 7 ¶ 26).
. Plaintiff alleges that he "submitted the first of multiple unsuccessful inquiries to ... amend the gender marker on his school records.” (ECF No. 7 ¶ 39). It is unclear from the complaint whether UPJ ever changed the gender marker to male in his school records.
. Plaintiff's original complaint (ECF No. 1-1) alleged four counts: discrimination and retaliation under Title IX; discrimination under the Pennsylvania Human Relations Act; discrimination under Pennsylvania Fair Educational Opportunities Act; and common law breach of contract. Magistrate Judge Pesto’s
. In addition to the other claims alleged in the original complaint, the second amended complaint includes an Equal Protection claim under the Fourteenth Amendment.
. In his second amended complaint, Plaintiff begins to renumber the allegations in his second claim for relief. The Court will attempt to clearly distinguish the paragraphs of the complaint that are redundantly numbered by referring to both the page number and the paragraph number of the relevant allegation in the complaint.
. Because Plaintiff has failed to allege a plausible federal claim for relief under either the Equal Protection Clause or Title IX, the Court will decline jurisdiction over Plaintiff's state law claims and will not evaluate those claims.
. Plaintiff argues that Glenn v. Brumby,
Additionally, Plaintiff relies heavily on recent Title VII employment discrimination cases involving transgender plaintiffs. However, strict reliance on Title VII employment discrimination cases is unwarranted in this case for a number of reasons. See Jackson v. Birmingham Bd. of Educ.,
. A Seventh Circuit case, considering claims by a female plaintiff of sexual harassment under Title VII because her employer failed to provide separate restroom facilities for her, provides an interesting contrast to the present case. DeClue v. Cent. Illinois Light Co.,
. In Michael M. v. Superior Court of Sonoma Cnty., Justice Rehnquist opined, "the Court has had some difficulty in agreeing upon the proper approach and analysis in cases involving challenges to gender-based classifications.”
. The Court recognizes that other courts have declined to follow the definition articulated in Ulane. See, e.g., Smith v. City of Salem, Ohio,
. This case, like other cases involving alleged discrimination against transgender individuals, raises important, but difficult, questions of what is sex and what is gender, what
The difficulty of linking sex and gender becomes remarkably apparent in a case, such as this one, where an individual’s assigned birth sex is different from that individual’s gender identity. See Sommers v. Budget Mktg., Inc.,
This Court will not attempt to sort out this perplexing difference in definitions. However, the Court notes that, regardless of the interplay between the two concepts, there is a distinction between birth sex and gender identity. For the purposes of this opinion, the Court will refer to "birth sex” as an individual's biological sex in the binary sense — either male or female — that is assigned at birth, as reflected on that individual’s birth certificate, and typically assigned on the basis of an individual's genitalia. But, the Court recognizes the importance of numerous other considerations in defining a person’s sex such as sex chromosomes, internal reproductive organs, hormone concentrations, and other relevant indicators. Indeed, one district court has evaluated three factors, “[b]ased on the standards of commonly accepted medical science,” to determine an individual’s biological sex: "(1) phenotypic characteristics; (2) endogenous hormonal characteristics; and (3) chromosomal characteristics.” Kastl v. Maricopa Cnty. Cmty. Coll. Dist., No. 02-cv-1531-PHX-SRB,
. One case comes close. In Kastl v. Maricopa County Community College, the United States District Court for the District of Arizona evaluated a transgender female’s claims of discrimination under Title VII and .Title IX and concluded, on a motion for summary judgment by the defendant, that the plaintiff had failed to “meet her burden of establishing a prima facie case of discrimination because she has provided no evidence that she was a biological femаle and member of a protected class while she was employed by Defendant.” Kastl v. Maricopa Cnty. Cmty. Coll. Dist., No. 02-cv-1531-PHX-SRB,
. In Smith v. City of Salem, Ohio,
. Plaintiff argues that the Court should give little weight to "whatever 'original intent’ may be inferred” from the statutory language or legislative history of Title IX. (ECF No. 19 at 25). Plaintiff asserts that, in determining the meaning of Title IX, any "resort to 'plain language' and legislative intent is unavailing.” (ECF No. 19 at 11). The Court disagrees. It is true, antidiscrimination statutes are to be liberally construed. See, Rabzak v. Berks Cnty.,
. The issue of deconstructing sex-segregated bathrooms is a policy matter that is better suited for Congressional consideration and deliberation. This approach has been successful in fighting discrimination in other contexts, including the development of statutory provisions to meet the needs of persons with disabilities under the Americans with
. While these cases involve sex stereotyping claims under Title VII, courts have also applied the sex stereotyping analysis to Title IX cases. See, e.g., Rumble v. Fairview Health Servs., No. 14-cv-2037 SRN/FLN,
. Plaintiff cites numerous cases discussing the meaning of "sex” under the framework of Title VII claims and asserts that "on the basis of sex” should be understood to "encompass discrimination based on gender nonconformity and transgender status.” (ECF No. 19 at 20) (citing Glenn v. Brumby,
. The Court recognizes the changing perceptions in society concerning transgender individuals. "However, the function of this Court is ... to construe the law in accordance with proper statutory construction and judicial precedent. The Court is constrained by the framework of the remedial statute enacted by Congress ...” Oiler v. Winn-Dixie Louisiana, Inc., No. 00-cv-3114,