Transgender Litigation Update

On February 27, 2017, Judge Mark Hornak of the United States District Court for the Western District of Pennsylvania granted a Motion for Preliminary Injunction filed by the Plaintiffs in the case of Evancho v. Pine-Richland School District, and simultaneously denied the Defendants’ Motion to Dismiss Plaintiffs’ Complaint.

The Plaintiffs in the case sought to enjoin the enforcement of Resolution Number 2, passed by the Pine-Richland School District School Board in September, 2016, which required that individuals utilizing School District facilities use the facilities comporting with their birth gender. The Plaintiffs, three transgender students, sought to utilize District facilities congruent with their stated gender identity, as opposed to their birth gender.

In granting the Plaintiffs’ Motion for Preliminary Injunction, and denying the Defendants’ Motion to Dismiss the case, Judge Hornak ruled that the Plaintiffs’ argument that the term “sex” in Title IX regulations governing the use of restroom and locker room facilities included an individual’s gender identity as well as the individuals birth gender was substantially weakened due to the recent rescinding of a May, 2016 guidance document issued jointly by the United States Departments of Education and Justice under President Obama, which interpreted the term “sex” in the aforementioned Title IX regulations to include gender identity, and advising recipients of federal funding to permit transgender individuals to utilize facilities congruent with their stated gender identity.  However, Judge Hornak granted the Plaintiffs’ Motion for Preliminary Injunction, reasoning that the Plaintiffs suffered harm, and had a reasonable likelihood of success on the merits of a claim under Equal Protection. Accordingly, Judge Hornak enjoined the School District from enforcing Resolution Number 2 as against the three Plaintiffs, and further enjoined the School District from taking disciplinary action against the Plaintiffs if they utilized restrooms consistent with their stated gender identities unless the use violated the School District’s Code of Student Conduct.

With the issuance of Judge Hornak’s February 27, 2017 decision, there are now two conflicting opinions in the Western District of Pennsylvania regarding the use of gender-specific facilities by transgender students. Previously, a District Court judge ruled in favor of the University of Pittsburgh in a case brought by a transgender individual seeking to utilize facilities corresponding to the individual’s gender identity. At this time, the scope of Judge Hornak’s decision is limited to the three Pine-Richland students. Maiello, Brungo, & Maiello recommends that its School District clients continue to await definitive guidance from Courts as to the ultimate resolution of this issue. Contact Maiello, Brungo, & Maiello’s School Law team at education@mbm-law.net or 412.242.4400 with any questions regarding this topic.