Case 2:16-cv MRH Document 34 Filed 11/14/16 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

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1 Case 216-cv MRH Document 34 Filed 11/14/16 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA JULIET EVANCHO; ELISSA RIDENOUR; and A.S., a minor, by and through his parent and next friend, vs. Plaintiffs, PINE-RICHLAND SCHOOL DISTRICT; DR. BRIAN R. MILLER, in his official capacity as Superintendent of the Pine- Richland School District; and NANCY BOWMAN, in her official capacity as Principal of Pine-Richland High School, Defendants. Civil Action No. 216-cv Judge Mark R. Hornak Electronically Filed JURY TRIAL DEMANDED DEFENDANTS MOTION TO DISMISS PURSUANT TO FED. R. CIV. PRO. 12(b)(6) Defendants Pine-Richland School District (the District ), Dr. Brian R. Miller ( Dr. Miller ) and Nancy Bowman ( Principal Bowman ) (collectively Defendants ), by and through their attorneys, the law firm of Maiello, Brungo & Maiello, LLP, file this Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and aver as follows 1. Plaintiffs are Juliet Evancho, Elissa Ridenour and A.S. (collectively referred to as Plaintiffs ). 2. Plaintiff Juliet Evancho was born as a male as indicated on a Commonwealth of Pennsylvania Birth Certificate. She resides in Allegheny County, attends the District s High School and is transgender. (Complaint, 12, 18, 21). 3. Plaintiff Juliet Evancho mostly feels welcome and respected at Pine-Richland High School. (Complaint, 42) ,

2 Case 216-cv MRH Document 34 Filed 11/14/16 Page 2 of 7 4. Plaintiff Elissa Ridenour was born as a male as indicated on a Commonwealth of Pennsylvania Birth Certificate. She resides in Allegheny County, attends the District s High School and is transgender. (Complaint, 13, 43, 46). 5. Plaintiff Elissa Ridenour likewise mostly feels welcome and respected at Pine- Richland High School. (Complaint, 56). 6. Plaintiff A.S. was born as a female as indicated on a Commonwealth of Pennsylvania Birth Certificate. He resides in Allegheny County, attends the District s High School and is transgender. (Complaint, 14, 61). 7. Despite a rocky start to his transition to the High School, Plaintiff A.S. now feels comfortable and safe at the High School and has not faced any transphobic harassment or bullying at school. (Complaint, 73). 8. Defendant Dr. Miller is the Superintendent of the District. (Complaint, 16). 9. Defendant Principal Bowman is the Principal of the Pine-Richland High School. (Complaint, 17). 10. Defendant District is a public school district serving over 4,600 students in kindergarten through twelfth grade who reside in Pine and Richland Townships. It is organized under the laws and constitution of the Commonwealth of the Pennsylvania. (Complaint, 15). 11. Plaintiffs commenced the above-captioned matter by the filing of a Complaint on or about October 6, Plaintiffs Complaint asserts a claim pursuant to Title IX of the Education Amendments of 1972 (20 U.S.C et seq.) ( Title IX ) as against the District only (Count I), and a claim by way of 42 U.S.C ( Section 1983 ) for rights secured by ,

3 Case 216-cv MRH Document 34 Filed 11/14/16 Page 3 of 7 Equal Protection Clause of the Fourteenth Amendment of the United States Constitution as against all Defendants (Count II). 13. Plaintiffs above-referenced claims are based upon the Pine-Richland s School Board s passage of Resolution #2 which states in its entirety This resolution agreed to by a majority of the Board of School 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 either 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. (Complaint, 108). 14. Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. 15. When considering a Rule 12(b)(6) motion to dismiss, the court s role is limited to determining if a plaintiff is entitled to offer evidence in support of his or her claims. See Semerenko v. Cendant Corp. 223 F. 3d 165, 173 (3d Cir. 2000). 16. Mere conclusory statements will not do; a complaint must do more than allege the plaintiff s entitlement to relief. Fowler v. UPMC Shadyside, 578 F. 3d 203, 210 (3d Cir. 2009). 17. A complaint must be dismissed for failure to state a claim if it does not allege enough facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). 18. [T]he touchstone of the pleading standard is plausibility. Bistrian v. Levi, 696 F. 3d 352, 365 (3d Cir. 2012) ,

4 Case 216-cv MRH Document 34 Filed 11/14/16 Page 4 of First, Plaintiffs have filed their Section 1983 claim (Count II) against Dr. Miller and Principal Bowman in their official capacities only. (Complaint, 16, 17). 20. Plaintiffs official capacity Section 1983 claims brought against Dr. Miller and Principal Bowman are indistinct from the same claim asserted against the educational entity, Pine-Richland School District. 21. Thus, the Section 1983 claims against the individual defendants, Dr. Miller and Principal Bowman, should be dismissed with prejudice and the caption amended to reflect same. 22. Additionally, Plaintiffs have failed to state a Title IX Claim against the District upon which relief can be granted, and thus said claim should be dismissed with prejudice. 23. Title IX provides that [n]o 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) (emphasis added). 24. The term sex, as codified into the Title IX statute and accompanying regulations, refers to a fixed, binary and genetically-determined sex, based on the nature of human reproduction and the irrefutable fact that we are a species of males and females. 25. Title IX also permits separate facilities to be maintained for the sexes. 34 C.F.R Plaintiffs inappropriately rely upon guidance issued by the Unites States Department of Education ( DOE ) and the United States Department of Justice ( DOJ ) in the form of a May 13, 2106 Dear Colleague Letter on Transgender Students ( 2016 DCL ) ,

5 Case 216-cv MRH Document 34 Filed 11/14/16 Page 5 of 7 indicating those agencies position that the term sex is not limited by the traditional understanding of the word as male and female, but now includes gender identity. 27. The 2016 DCL requires public schools to permit transgender male and transgender female students to use restroom facilities consistent with their gender identify or face enforcement action in the form of loss of federal educational funding. (Complaint, 128). 28. The 2016 DCL contravenes congressional intent as related to Title IX and was issued by the DOE and DOJ without appropriate notice and comment rule-making as required by the Administrative Procedures Act (5 U.S.C. 706). 29. Furthermore, Plaintiffs have failed to state an Equal Protection claim upon which relief can be granted, and thus said claim should be dismissed with prejudice. 30. The Fourteenth Amendment to the United States Constitution provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. 31. 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, thus Plaintiffs Equal Protection claim is reviewed under a rational basis standard. 32. However, even if a heightened standard of review were to apply, the result would be the same as Resolution #2 is substantially related to the important government interest of ensuring the privacy of its students to use the restroom outside of the presence of members of the opposite biological sex. 33. In support of their Motion to Dismiss, Defendants incorporate by reference their Brief in Support of Motion to Dismiss which has been filed contemporaneously with their Motion ,

6 Case 216-cv MRH Document 34 Filed 11/14/16 Page 6 of 7 WHEREFORE, Defendants Pine-Richland School District, Dr. Brian R. Miller and Nancy Bowman respectfully request that this Honorable Court grant their Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) and dismiss Counts I and II in their entirety and with prejudice. RESPECTFULLY SUBMITTED, MAIELLO, BRUNGO & MAIELLO, LLP /s/ Christina Lane Christina Lane, Esquire Pa. I.D. #83677 cll@mbm-law.net Alfred C. Maiello, Esquire Pa. I.D. #00801 acm@mbm-law.net Michael L. Brungo, Esquire Pa. I.D. #46555 mlb@mbm-law.net Roger W. Foley, Jr., Esquire Pa. I.D. #73936 rwf@mbm-law.net Gary H. Dadamo, Esquire Pa. I.D. #93292 ghd@mbm-law.net Peter J. Halesey, Esquire Pa. I.D. # pjh@mbm-law.net (Attorneys for Defendants) ,

7 Case 216-cv MRH Document 34 Filed 11/14/16 Page 7 of 7 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this 14 th day of November, 2016, I have filed the foregoing Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) with the Clerk of Courts via the District Court Electronic Case Filing System which will send notification of such filings to the following counsel of record Omar Gonzalez-Pagan, Esquire Lambda Legal Defense and Education Fund, Inc. 120 Wall Street, 19 th Floor New York, NY Christopher R. Clark, Esquire Kara N. Ingelhart, Esquire Lambda Legal Defense and Education Fund, Inc. 105 West Adams Street, Suite 2600 Chicago, IL Tracie L. Palmer, Esquire David C. Williams, Esquire Kline and Specter, P.C Locust Street Philadelphia, PA MAIELLO, BRUNGO & MAIELLO, LLP /s/christina Lane Christina Lane, Esquire Pa. I.D. #83677 Alfred C. Maiello, Esquire Pa. I.D. #00801 Michael L. Brungo, Esquire Pa. I.D. #46555 Roger W. Foley, Jr., Esquire Pa. I.D. #73936 Gary H. Dadamo, Esquire Pa. I.D. #93292 Peter J. Halesey, Esquire Pa. I.D. # (Attorneys for Defendants) ,