Litigation Chronology: Transgender Students’ Access to Sex-Segregated Facilities

Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ.

  • United States District Court for the Western District of Pennsylvania
  • Factual Background: transgender male student sought use of sex-segregated restrooms and locker rooms designated for men at the university
  • 3/31/15 District Court Decision: transgender student’s claims against the university based upon Title IX and the Equal Protection Clause were dismissed
  • Current Status: case was terminated on 3/30/16 due to settlement reached while the student’s appeal to the Third Circuit Court of Appeals was pending

G.G. v. Gloucester County Sch. Bd.

  • Factual Background: transgender male student seeks use of boy’s restroom at the school district
  • 9/17/15 District Court Decision: transgender student’s motion for preliminary injunction was denied, and his Title IX claim was dismissed (District Court did not address the student’s Equal Protection claim); transgender student appealed the denial of the preliminary injunction to the Fourth Circuit Court of Appeals (see below)
  • 4/19/16 Circuit Court Decision: the District Court’s denial of the transgender student’s motion for preliminary injunction (see above) was vacated, and the dismissal of the Title IX claim was reversed; the case was remanded back to the District Court which then granted the transgender student’s motion for preliminary injunction
  • Current Status: an appeal of the preliminary injunction determination was permitted to the U.S. Supreme Court on 10/29/16; the case was remanded back to the Fourth Circuit Court of Appeals on 3/6/17; on 8/2/17, the Circuit Court remanded the matter back to the District Court to address whether the case had become moot given that the transgender student has now since graduated; the parties then stipulated to the voluntary dismissal of the appeal before the Fourth Circuit Court which was granted on 8/30/17; the transgender student then filed an Amended Complaint in District Court on 8/22/17; the District filed a motion to dismiss on 9/22/17; the transgender student responded to the motion on 9/29/17; and the District filed a reply on 10/11/17; on 10/26/17, the Court ordered the transgender student to file a supplemental brief addressing mootness by 12/25/17 and the District to respond no later than 21 days thereafter (a decision regarding the District’s motion to dismiss being deferred pending a ruling on the mootness issue); on 11/6/17, the transgender student filed a motion waiving any request for prospective relief/damages to attempt to resolve the mootness issue (see above), on 11/16/17 the District responded in opposition to the same, and on 11/17/17, the transgender student replied to the same

Texas v. United States

  • United States District Court for the Northern District of Texas
  • Factual Background: the State of Texas argued that the interpretation of Title IX by the U.S. Departments of Education (“DOE”) and Justice (“DOJ”) as provided in a 5/13/16 Dear Colleague Letter (which required student access to sex-segregated facilities based upon their gender identity) was unlawful
  • 8/21/16 District Court Decision: Texas’ motion for a preliminary injunction was granted, and the DOE and DOJ were prohibited from enforcing the 5/13/16 Dear Colleague Letter nationwide
  • Current Status: the case was terminated by the parties on 3/30/17 after the Trump Administration withdrew the 5/13/16 DOE/DOJ Dear Colleague Letter on 2/22/17

Nebraska et al. v. United States et al.

  • Factual Background: the State of Nebraska and nine other states alleged that the DOE and DOJ violated the Administrative Procedure Act and other federal laws by issuing the 5/13/16 Dear Colleague Letter (see above) and controlling local school determinations regarding how best to designate locker room and bathroom assignments
  • Current Status: the case was terminated by the parties on 3/16/17 after the Trump Administration withdrew the 5/13/16 DOE/DOJ Dear Colleague Letter on 2/22/17

Carcańo v. McCrory

  • United States District Court for the Middle District of North Carolina
  • United States Court of Appeals for the Fourth Circuit
    • 16-1989
  • Factual Background: transgender students at UNC challenged North Carolina House Bill 2 (the “Public Facilities Privacy and Security Act”) which required public agencies to ensure that sex-segregated facilities be used by persons based upon their “biological sex” which was defined as the sex listed on their birth certificate
  • 8/26/16 District Court Decision: the transgender students’ motion for a preliminary injunction was granted – the Court found that the transgender students had shown that they were likely to succeed on their Title IX claim but had not shown that they were likely to succeed on their Equal Protection claim
  • Current Status: an appeal of the District Court decision (see above) to the Fourth Circuit Court of Appeals was voluntarily dismissed by the parties on 4/20/17 after House Bill 2 was repealed by House Bill 142 on 3/30/17; on 9/7/17, the transgender students filed an Amended Complaint based upon the argument that House Bill 142 still discriminates against transgender individuals and perpetuates many of House Bill 2’s harms and stigmatization; on 10/18/17, the transgender plaintiffs and the Executive Branch Defendants filed a joint motion for entry of a consent decree whereby the Court would Order that House Bill 142 will not prevent transgender people from using public facilities in accordance with their gender identity; on 10/23/17, the Intervenor Defendants (Senator Phil Berger and Speaker Tim Moore) and the UNC Defendants filed motions to dismiss the Amended Complaint (arguing that the Court does not have subject matter jurisdiction over the matter due to lack of standing and ripeness) and the Plaintiffs must respond by 12/1/17

Berger v. U.S. Department of Justice
North Carolinians for Privacy v. U.S. Department of Justice

  • Factual Background: Plaintiffs sought declaratory judgments that North Carolina House Bill 2 (see above) did not violate Title VII, Title IX or any other statutes
  • Current Status: both cases were voluntarily terminated by the parties on 4/14/17 after House Bill 2 was repealed by House Bill 142 on 3/30/17

Whitaker v. Kenosha Unified Sch. Dist. No. 1

  • United States District Court for the Eastern District of Wisconsin
  • United States Court of Appeals for the Seventh Circuit
  • Factual Background: transgender male student seeks use of the boy’s restroom at the school district
  • 9/22/16 District Court Decision: the transgender student’s motion for a preliminary injunction was granted – the Court found that the transgender student might succeed on his Title IX claim and had alleged sufficient facts to support his Equal Protection claim; the School District appealed the grant of the preliminary injunction to the Seventh Circuit Court of Appeals (see below)
  • 5/30/17 Seventh Circuit Decision: the Court of Appeals affirmed the District Court’s grant of preliminary injunctive relief in favor of the transgender student
  • Current Status: on 10/25/17, the District filed a motion for judgment on the pleadings; continued mediation took place on 11/21/17; dispositive motions due on 12/18/17

Bd. of Educ. [of the Highland Local Sch. Dist.] v. U.S. Dep’t of Educ.

  • United States District Court for the Southern District of Ohio
  • United States Court of Appeals for the Sixth Circuit
    • 16-4117
  • Factual Background: transgender female student seeks use of girl’s restroom at the school district
  • 9/26/16 District Court Decision: the transgender student’s motion for a preliminary injunction was granted – the Court found that the transgender student is likely to succeed regarding both her Title IX claim and her Equal Protection claim
  • Current Status: the School District appealed the grant of the preliminary injunction to the Sixth Circuit Court of Appeals; the student’s response brief is due on 1/8/17; the District Court matter is now stayed pending a decision by the Court of Appeals

Students & Parents for Privacy v. United States Dep’t of Educ.

  • Factual Background: Students & Parents for Privacy filed a motion for a preliminary injunction requiring the school district to only permit the use of sex-segregated facilities, including locker rooms, on the basis of biological sex (not gender identity)
  • 10/18/16 Report and Recommendation of the Magistrate Judge: the Magistrate Judge recommended that the District Court Judge deny the motion for a preliminary injunction because the Students & Parents for Privacy did not show a likelihood of success concerning alleged violations of the constitutional right to privacy or Title IX
  • Current Status: the Students & Parents for Privacy timely filed objections to the Magistrate Judge’s Report and Recommendation (see above) and supplemental briefing is currently taking place

Women’s Liberation Front v. U.S. Dept. of Justice

  • Factual Background: Plaintiff alleged that the 5/13/16 Dear Colleague Letter (see above) violated the Administrative Procedure Act, Title IX and the U.S. Constitution
  • Current Status: the case was terminated by the parties on 3/16/17 after the Trump Administration withdrew the 5/13/16 DOE/DOJ Dear Colleague Letter on 2/22/17 

Evancho v. Pine-Richland Sch. Dist.

  • United States District Court for the Western District of Pennsylvania
  • Factual Background: three transgender students sought the use of restrooms that correspond with their gender identity at the school district
  • 2/27/17 District Court Decision: the transgender students’ motion for a preliminary injunction was granted in part – the District Court found that the transgender students were likely to succeed regarding their Equal Protection claim but not their Title IX claim
  • Current Status: the parties have settled this matter, and a Joint Motion for Consent Judgment was entered on 8/4/17

Doe v. Boyertown Area Sch. Dist.

  • United States District Court for the Eastern District of Pennsylvania
  • United States Court of Appeals for the Third Circuit
    • 17 – 3113
  • Factual Background: various cisgender students allege violations of their constitutional and common law rights to privacy and a violation of Title IX (“hostile environment” harassment) based upon observing and/or being observed by transgender students while using locker rooms and/or restrooms at the school district
  • 8/25/17 District Court Decision: the cisgender students’ motion for a preliminary injunction requiring the District to cease its practice of permitting students to use restrooms and locker rooms consistent with their gender identity was denied – the District Court determined that the cisgender students were not likely to succeed on the merits of any of their claims and failed to show irreparable harm
  • Current Status: the School District filed a motion to dismiss the cisgender students’ claims which was denied on 11/7/17; also, the cisgender students filed a motion requesting preliminary injunctive relief on 5/17/17 which was denied by the District Court on 8/25/17 (see above) and appealed to the Third Circuit Court of Appeals on 9/25/17; the cisgender students’ appellant brief was filed on 11/10/17; the District’s appellee brief is due 12/10/17; and a reply brief may be filed 14 days thereafter; the District Court matter is stayed pending resolution of the appeal

A.H. v. Minersville Area Sch. Dist.

  • United States District Court for the Middle District of Pennsylvania
  • Factual Background: parents of an eight year-old transgender girl allege violations of Title IX and Equal Protection by requiring her to use the restroom which corresponds with the sex indicated on her birth certificate
  • Current Status: an Amended Complaint was filed on 5/30/17 to which the District filed a motion to dismiss which was denied on 11/22/17; all fact discovery must be completed by 1/31/18; all expert discovery must be completed by 3/31/18; and all dispositive motions must be filed by 4/15/18

Adams v. The School Board of St. Johns County, Florida

  • United States District Court for the Middle District of Florida
  • Factual Background: a 16 year old transgender male student alleges violations of Title IX and Equal Protection by the school district denying him access to the boy’s restrooms
  • Current Status: Complaint was filed on 6/28/17 and First Amended Complaint was filed on 9/9/17 (adding compensatory damages in addition to nominal damages); transgender student’s motion for a preliminary injunction was denied on 8/10/17; School District answered the Equal Protection claim but filed a motion to dismiss the Title IX claim which claim will be “carried with the case” and decided following trial; mediation will take place by 12/1/17; a final pretrial conference is scheduled for 12/1/17; a three day non-jury trial will take place from 12/11/17 – 12/13/17; findings of fact and conclusions of law will be submitted following trial

Note:

Lamda Legal Defense and Education Fund v. U.S. DOE/DOJ

  • Factual Background: Lamda Legal, an organization which addresses the civil rights of the LGBTQ community, filed a federal lawsuit to compel the DOE and DOJ to release information about their decision to withdraw their 5/13/16 Dear Colleague Letter on 2/22/17 (see above); Lambda Legal alleges that it previously requested the information pursuant to the Freedom of Information Act, but never received the same
  • Current Status: Complaint was filed on 8/22/17; Amended Answer to Complaint filed on 10/27/17; on 10/10/17, the District Court ordered the Defendants to produce documents in response to the Freedom of Information act Request by 12/20/17, and ordered the parties to file a joint status letter by 12/26/17 about the document production and any potential motion for summary judgment if Defendants were not fully compliant

Actions filed by the ACLU – pending with the DOE/OCR

  • ACLU-FL v. Marion County School District (filed on 5/12/16)
  • complaint filed by transgender male student who was suspended for using the male restroom days after the school board changed its policy concerning the use of sex-designated facilities
  • ACLU-TN v. Sumner County Schools (filed on 5/19/16)
  • complaint filed on behalf of transgender female student alleging that District policy violates Title IX and the Fourteenth Amendment

Contact Roger Foley at rwf@mbm-law.net or 412.242.4400 of our Litigation Team with any questions your district is facing.