Litigation Chronology: Transgender Students’ Access to Sex-Segregated Facilities (Last Updated 8/1/18)

PENNSYLVANIA CASES (4 total; 2 still pending)

Doe v. Boyertown Area Sch. Dist.

  • 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
  • 7/26/18 (revised) Third Circuit Decision: Court determined that the cisgender students’ constitutional right to privacy was not violated because the state had a compelling state interest in not discriminating against transgender students, and the District’s policy was narrowly tailored to serve that interest; the Court rejected the cisgender students’ Title IX claim because the District policy applied equally to all students; the Court also did believe that the mere presence of a transgender student in a restroom/locker room would be highly offensive to a reasonable person such as to support a tort claim for intrusion upon seclusion
  • 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 which upheld the District Court’s denial from the bench on 5/24/18; on 7/2/18, the cisgender students filed a petition for a either a panel rehearing or rehearing before the entire Third Circuit Court (en banc); on 7/26/18, the Third Circuit denied the request for rehearing en banc but granted a panel rehearing, and the panel’s 5/24/18 opinion was revised accordingly; 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 (second grade) 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
  • 11/22/17 District Court Decision – relying heavily on the analysis provided in the Evancho and Whitaker decisions (see above/below), the Court denied the District’s motion to dismiss the cisgender students’ Title IX and Equal Protection claims
  • Current Status: an Amended Complaint was filed on 5/30/17 and the District filed a motion to dismiss which was denied on 11/22/17 – thus the District filed an Answer to the Complaint on 12/6/17; cross-motions for summary judgment filed by all parties on 6/15/18 with the cisgender students’ response filed on 6/29/18, the District’s response filed on 7/6/18, the District’s reply filed on 7/13/18 and the cisgender students’ reply filed on 7/18/18

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

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 settled this matter, and a Joint Motion for Consent Judgment was entered on 8/4/17

PENDING CASES NATIONWIDE (7 total)

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
  • 5/22/18 District Court Decision: motion to dismiss the transgender student’s complaint was denied allowing the transgender student to proceed with claims based upon Title IX (finding that discrimination on the basis of transgender status constitutes impermissible gender stereotyping) and equal protection (finding that the school district’s policy was not substantially related to protecting other student’ privacy rights)
  • Current Status: an appeal of the preliminary injunction determination was permitted to the U.S. Supreme Court on 10/29/16 but the case was remanded back to the Fourth Circuit Court of Appeals on 3/6/17; on 8/2/17, the Fourth Circuit Court remanded the matter back to the District Court to address whether the case had become moot given that the transgender student has graduated; the parties then stipulated to the voluntary dismissal of the Circuit Court appeal 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 District Court ordered the transgender student to file a supplemental brief addressing mootness (a decision regarding the District’s motion to dismiss being deferred pending a ruling on the mootness issue); on 11/2/17, the transgender student filed a motion waiving any request for prospective relief/damages to attempt to resolve the mootness issue (see above) which was granted by the Court on 12/12/17 after finding that the case is not moot as to Plaintiff’s request for retrospective declaratory relief and nominal damages; the District then filed an amended motion to dismiss on 1/5/18 which was denied on 5/22/18; the District Court granted the parties’ motion to appeal this decision to the Fourth Circuit Court on 6/5/18; the District filed an Answer to the Complaint on 7/20/18; a scheduling conference is scheduled for 9/17/18 and a settlement conference is scheduled for 10/4/18

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), the Plaintiffs responded on 12/1/17 and the Intervenor Defendants replied on 12/15/17; a hearing on all outstanding motions was held on 6/25/18

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

  • Factual Background: Students & Parents for Privacy (“S&P”) challenge the school district’s (Palentine Township) policy of allowing transgender students to use sex-segregated facilities (restrooms and locker rooms) consistent with their gender identity based upon violations of rights to privacy and Title IX
  • 10/18/16 Report and Recommendation of the Magistrate Judge: the Magistrate Judge recommended that the District Court Judge deny S&P’s motion for a preliminary injunction because S&P failed to show a likelihood of success concerning violations of constitutional rights to privacy or violations of Title IX as well as failed to show irreparable harm and the lack of an adequate remedy at law
  • 12/29/17 District Court Decision: the District Court adopted the Report and Recommendation of the Magistrate Judge (see above) and emphasized the Seventh Circuit Court’s 5/30/17 decision concerning transgender students’ access to restrooms in the Whitaker case (see above)
  • Current Status: on 12/29/17, the District Court denied S&P’s motion for a preliminary injunction (see above); S&P filed an Amended Complaint on 2/15/18; the school district filed a motion to dismiss on 4/2/18, S&P responded on 4/30/18, and the District replied on 5/21/18; a joint status report must be filed by 8/24/18; and a status conference is scheduled for 8/30/18

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; a non-jury trial took place from 12/11/17 – 12/13/17; on 7/26/17 final judgment was entered in favor of the transgender student enjoining the School District from enforcing a bathroom policy that prohibits the transgender student (but not all transgender students) from using the boy’s bathroom, except within locker rooms and shower facilities, and awarding the transgender student $1,000 in compensatory emotional distress damages

Parents for Privacy v. Dallas School District

  • Factual Background: cisgender students allege that District policy allowing transgender students access to locker rooms consistent with their gender identity violates their fundamental right to privacy and Title IX
  • 7/24/18 District Court Decision: Court concluded that high school students do not have a fundamental privacy right to not share school restrooms, lockers and showers with transgender students, and that the District’s policy does not violate Title IX as it treats all students equally and does not target any specific student based upon their sex
  • Current Status: Complaint filed on 11/13/17; the District filed a motion to dismiss on 2/20/18; on 7/24/18, the Court dismissed the cisgender student’s claims with prejudice

Doe v. Volusia County School Board

  • Factual Background: transgender high school student alleges that District’s policy denying access to restrooms and locker rooms consistent with his gender identity violates Title IX and the Equal Protection clause
  • Current Status: Complaint filed on 1/19/18 and District filed an Answer on 2/12/18; Plaintiff filed a motion of preliminary injunction on 2/23/18 which was denied on 4/4/18 due to Plaintiff’s failure to establish irreparable harm; discovery must be completed by 9/10/18; dipositive motions must be filed by 9/17/18; mediation must take place by 9/24/18; pre-trial statements must be filed by 10/13/18; a final pre-trial conference is scheduled for 10/18/18; and a non-jury trial is scheduled for 11/5/18

Reynolds v. Williamson Community School District

  • United States District Court for the Western District of Michigan
  • Factual Background: cisgender students challenge District policy permitting use of restrooms and locker rooms consistent with gender identity as violating Title IX, their right to privacy, their right to the free exercise of religion, etc.
  • Current Status: Complaint filed on 1/19/18, the District filed a motion to dismiss on 2/28/18, and the cisgender student responded on 4/26/18, and the District replied on 5/9/18

Actions filed by the ACLU – pending with the DOE/OCR (2 total):

  • 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 denying transgender students access to restrooms and locker rooms on the basis of gender identity violates Title IX and the Fourteenth Amendment

CONCLUDED/RESOLVED CASES (11 total)

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

  • 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 8/28/17, the District filed a petition for certiorari with the United States Supreme Court to review the decision of the Seventh Circuit Court of Appeals – see above; the parties then settled the matter, and a Joint Motion for Consent Judgment was entered on 1/29/18

Isaac v. Duval County Public Schools

  • United States District Court for the Middle District of Florida
  • Factual Background: cisgender students alleged that permitting transgender students to use the restrooms and changing facilities based upon their gender identity deprived them of their right to bodily privacy
  • Current Status: Complaint filed on 6/15/16; parties filed a joint stipulation for voluntary dismissal on 11/2/16; Court dismissed the case without prejudice on 11/3/16

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 voluntarily 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 voluntarily 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

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

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 voluntarily 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

Privacy Matters v. U.S. Dept. of Education

  • Factual Background: student/parent group alleged that allowing transgender students to use sex-segregated facilities consistent with their gender identity violated Title IX, the fundamental right to privacy, etc.
  • Current Status: Complaint filed on 9/7/16; on 12/5/16, the Court stayed the case pending a decision in the G. matter – see above; the case was voluntarily terminated on 4/13/17

Mary Smith v. Board of Education of Frederick County

  • Factual Background: cisgender female student alleged that District’s policy permitting transgender students to use sex-segregated facilities based upon their gender identity violated her privacy rights and Title IX
  • Current Status: Complaint was filed on 8/11/17; District filed a motion to dismiss on 10/20/17; case voluntarily dismissed by the student on 11/6/17 (due to anxiety experienced by the student regarding the lawsuit)

M.A.B. v. Board of Education of Talbot County

  • Factual Background: transgender male student alleges violations of Title IX, the Equal Protection Clause and state statutes after being prevented by the District from using the boys’ locker room
  • 3/12/18 District Court Decision: transgender student’s motion for preliminary injunction was denied (holding that the student did not demonstrate a clear likelihood of suffering irreparable harm), and the District’s motion to dismiss the Complaint was denied (holding that claims of discrimination on the basis of transgender status are per se actionable under a gender stereotyping theory and the policy at issue subjects the student to gender stereotyping)
  • Current Status: Complaint filed on 7/19/16; the parties filed a joint motion to stay the case on 8/16/16 (due to the pending G. litigation – see above); case was reopened on 3/10/17; the District filed a motion to dismiss on 4/18/17; the transgender student filed a motion for preliminary injunction on 5/22/17; on 3/12/18, the Court denied the District’s motion to dismiss and denied the student’s motion for preliminary injunction without prejudice; the District then answered the Complaint on 3/26/18 but the student filed an Amended Complaint on 5/2/18 which was answered on 5/17/18; the parties then settled the matter on 6/18/18

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 and the parties filed a stipulation to dismiss the appeal of 2/21/18 and the case was settled on 6/21/18

Contact Roger Foley at [email protected] or 412.242.4400 of our Litigation Team with any questions your district is facing.