Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 1 of 37 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

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1 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 1 of 37 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA ) SEAMUS JOHNSTON, ) ) ) Plaintiff, ) Civ. No. 3:13-cv-213-KRG-KAP ) v. ) UNIVERSITY OF PITTSBURGH, et al., ) ) ) Defendants. ) ) ) Honorable Kim R. Gibson Magistrate Judge Keith A. Pesto Electronically Filed PLAINTIFF S SURREPLY IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS SECOND AMENDED COMPLAINT

2 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 2 of 37 TABLE OF CONTENTS INTRODUCTION... 1 ARGUMENT... 5 I. DEFENDANTS VIOLATED TITLE IX BY DISCRIMINATING AGAINST MR. JOHNSTON BASED ON HIS SEX AND TRANSGENDER STATUS... 5 A. Discrimination Claims by Transgender Plaintiffs Like Mr. Johnston Are Not Limited to Sex-Stereotyping Claims... 5 B. Mr. Johnston Has Sufficiently Alleged a Claim for Sex-Stereotyping Discrimination Under Title IX II. MR. JOHNSTON HAS SUFFICIENTLY PLED DISCRIMINATION BASED ON SEX UNDER THE EQUAL PROTECTION CLAUSE A. Mr. Johnston s Equal Protection Claim Is Subject to Intermediate Scrutiny B. Defendants Post-Hoc Justification for Their Discriminatory Conduct Is Unsupported by Any Allegations or Evidence Whatsoever, Is Contrary to Law, and Raises a Factual Issue That Must Be Decided at Trial III. MR. JOHNSTON HAS ALLEGED A PRIMA FACIE CLAIM OF RETALIATION IV. MR. JOHNSTON HAS ALLEGED A CLAIM FOR BREACH OF CONTRACT V. MR. JOHNSTON HAS ADEQUATELY PLED DISCRIMINATION UNDER THE PHRA AND PFEOA VI. MR. JOHNSTON HAS ADEQUATELY ALLEGED DISCRIMINATION CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS CONCLUSION ii

3 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 3 of 37 TABLE OF AUTHORITIES Cases... Page Ashcroft v. Iqbal, 556 U.S. 662 (2009) Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001)... 2, 6, 7, 10 Borough of Lansdale v. PP&L, Inc., 426 F. Supp. 2d 264 (E.D. Pa. 2006) California Educ. Committee LLC v. O Connell, No CU-CR-GDS, slip op. (Cal. Super. Ct. June 1, 2009) Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) Crosby v. Reynolds, 763 F. Supp. 666 (D. Me. 1991)... 20, 21 Cruzan v. Special Sch. Dist. No. 1, 294 F.3d. 981 (8th Cir. 2002) Dawn L. v. Greater Johnstown Sch. Dist., 586 F. Supp. 2d 332 (W.D. Pa. 2008) Dep t of Fair Employment and Housing v. American Pac. Corp., CU-CR-GDS (Cal. Super. Ct. Mar. 13, 2014) Doe v. Regional Sch. Unit 26, 86 A.3d 600 (Me. 2014) Doe v. Yunits, No A, 2000 WL (Mass. Super. Ct. Oct. 11, 2000) Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3d Cir. 2000) Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) Gjeka v. Delaware County Cmty. Coll., Civ. A. No , 2013 WL (E.D. Pa. May 23, 2013)... 24, 25 Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011)... passim

4 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 4 of 37 Greco v. Senchak, Civ. A. No. 3: , 2013 WL (M.D. Pa. Aug. 26, 2013) Grosz v. Lassen Cmty. Coll. Dist., 360 Fed. Appx. 795 (9th Cir. 2009) Haney v. Clinton Twp., Civ. A. No , 2012 WL (W.D. Pa. Aug. 2, 2012) Haugh v. Bullis Sch., Inc., Civ. A. No. HAR , 1989 WL (D. Md. Apr. 25, 1989) Hayes v. Waddell & Reed, Civ. A. No Erie, 2013 WL (W.D. Pa. Sept. 26, 2013) Hayman v. WYXR-FM, Civ. A. No , 1992 WL (E.D. Pa. Aug. 21, 1992) Huggins v. Coatesville Area Sch. Dist., Civ. A. No , 2008 WL (E.D. Pa. Aug. 27, 2008) Karlo v. Pittsburgh Glass Works, 880 F. Supp. 2d 629 (W.D. Pa. 2012) Logan v. Gary Cmty. Sch. Corp., No. 2:07-CV-431JVB, 2008 WL (N.D. Ind. Sept. 25, 2008) Macy v. Holder, EEOC Appeal. No , 2012 WL (E.E.O.C. Apr. 20, 2012)... 9, 10 Maffei v. Kolaeton Indus., Inc., 626 N.Y.S.2d 391 (N.Y. Sup. Ct. 1995)... 8 Mathis v. Fountain-Fort Carson Sch. Dist. 8, Charge No. P X Colo. Div. Civ. Rights (June 17, 2013)... 11, 12 McPherson v. United States, 392 Fed. Appx. 938 (3d Cir. 2010) Morosetti v. Louisiana Land and Exploration Co., 564 A.2d 151 (Pa. 1989) Olsen v. Marriott Int l, Inc., 75 F. Supp. 2d 1052 (D. Ariz. 1999) Orzechowitz v. Nova Southeastern Univ., No CIV, 2014 WL (S.D. Fla. Mar. 31, 2014) ii

5 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 5 of 37 Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192 (3d Cir. 1993) Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) Prowel v. Wise Bus. Forms, 579 F.3d 285 (3d Cir. 2009)... 2, 6, 7, 10 Reardon v. Allegheny Coll., 926 A.2d 477 (Pa. Super. Ct. 2007) Releford v. Pennsylvania State Univ., No. 10-cv-1621, 2011 WL (M.D. Pa. Mar. 14, 2011) Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384 (3d Cir. 2005) Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006)... 8, 9 Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008)... 9 Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000)... 9 Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)... 9, 16, 17, 18 Spragg v. Shore Care, 679 A.2d 685 (N.J. Super. Ct. App. Div. 1996) Swartley v. Hoffner, 734 A.2d. 915 (Pa. Super. Ct. 1999)... 24, 25 Terveer v. Billington, Civ. A. No (CKK), 2014 WL (D.D.C. Mar. 31, 2014)... 8 Tronetti v. TLC HealthNet Lakeshore Hosp., 03-CV-0375E(SC), 2003 WL (W.D.N.Y. Sept. 26, 2003)... 8 Udall v. Tallman, 380 U.S. 1 (1965) United States v. Mead Corp., 533 U.S. 218 (2001) iii

6 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 6 of 37 Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995) Wells v. Board of Trs. of the Cal. State Univ., 393 F. Supp. 2d 990 (N.D. Cal. 2005) Wheeler v. Voicestream Wireless Servs., No. 03-cv-1916, 2003 WL (M.D. Pa. Oct. 27, 2003) Wheeler v. Voicestream Wireless Servs., No. 03-cv-1916, 2005 WL (M.D. Pa. May 24, 2005) Williams v. Illinois, 399 U.S. 235 (1970) Williams v. Runyon, 130 F.3d 568 (3d Cir. 1997) Williams v. School Dist. of Bethlehem, Pa., 998 F.2d 168 (3d Cir. 1993) Other Authorities U.S. DEP T OF EDUC. OFFICE FOR CIVIL RIGHTS, QUESTIONS AND ANSWERS ON TITLE IX AND SEXUAL VIOLENCE (Apr. 29, 2014) U.S. OFFICE OF PERS. MGMT., GUIDANCE REGARDING THE EMPLOYMENT OF TRANSGENDER INDIVIDUALS IN THE FED. WORKPLACE (2011) Regulations 20 U.S.C Exec. Order No , 45 Fed. Reg (1980) iv

7 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 7 of 37 Plaintiff Seamus Johnston respectfully submits this Surreply in Opposition to the Motion to Dismiss Second Amended Complaint filed by Defendants. 1 INTRODUCTION In their opening brief in support of their motion to dismiss, Defendants argued that Title IX, on its face, does not protect transgender people from discrimination and that the legislative history does not demonstrate any Congressional intent to prohibit discrimination on the basis of gender identity, gender expression or gender transitioning. See MTD at After Mr. Johnston stated again in his Opposition Brief that his claim is for sex discrimination, and demonstrated that courts invariably have held sex discrimination claims by transgender plaintiffs are actionable under Title IX, Defendants abruptly shifted gears. See Reply at 3. Defendants now seemingly have abandoned their arguments based on statutory language and legislative intent, and instead have adopted a new and novel (and unsupportable) argument: that although a transgender plaintiff may assert a sex discrimination claim under Title IX, that claim survives a motion to dismiss only if a plaintiff has made sufficient allegations of sex stereotyping, i.e., discrimination because the plaintiff did not conform to stereotypical gender roles. Reply at 2. Defendants argue that Mr. Johnston s Complaint (which they concede does, in fact, allege that Defendants discriminated against Mr. Johnston because of... his perceived failure to conform to gender stereotypes, Reply at 4) fails to make sufficient allegations supporting a claim based on sex stereotyping. Id. These new contentions are unavailing. Notwithstanding Defendants latest arguments, a complaint by a transgender student 1 Capitalized terms that are not otherwise defined have the meaning given in Plaintiff s Memorandum of Law in Opposition to Defendants Motion to Dismiss Second Amended Complaint, filed April 2, 2014 (the Opposition Brief or Opp. Br. ). Defendants Reply Brief in Support of Defendants Motion to Dismiss Second Amended Complaint, filed April 22, 2014, is referred to herein as the Reply.

8 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 8 of 37 under Title IX is not deficient if it fails to allege facts demonstrating sex stereotyping separate and apart from allegations of discrimination based on transgender status. Courts, as well as the Department of Education, the federal agency charged with the enforcement of Title IX, consistently and explicitly have recognized that a claim may be brought under Title IX for discrimination based on transgender status alone. A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (emphasis added). There is no legally relevant distinction between sex stereotyping claims and claims based on transgender status; rather, transgender status claims are a subcategory of sex stereotyping claims. See id.; see also Opp. Br. at In any event, the Complaint here does, in fact, allege discrimination based on Mr. Johnston s perceived failure to conform to gender norms. The Complaint details that Defendants singled Mr. Johnston out forcing him to use a unisex referee s locker room (Complaint at 48), refusing to update his student records (id. at 52, 55, 58), issuing him citations for using the men s locker room and restrooms (id. at 60, 62, 67), barring him from the men s locker room and restrooms (id. at 63, 65, 69), and, ultimately, expelling him for using the men s locker room and restrooms (id. at 68, 71-72) solely because, unlike most other male students, he was assigned the sex of female at birth. In short, Mr. Johnston s Complaint 2 Defendants rely on two Third Circuit cases, Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) and Prowel v. Wise Bus. Forms, 579 F.3d 285 (3d Cir. 2009), for the proposition that Title IX claims cannot be based on transgender status. These cases (which Defendants cite for the first time in their Reply) are inapposite, however, as they concern sexual orientation discrimination, not sex discrimination based on gender identity or transgender status, as alleged here. They stand only for the proposition that, under Third Circuit law, a nontransgender gay or lesbian plaintiff must allege nonconformity with gender stereotypes to assert a claim for discrimination under Title IX. They say nothing about what a transgender plaintiff must allege to set forth a claim of sex discrimination. 2

9 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 9 of 37 expressly alleges that Defendants discriminated against Mr. Johnston because of his perceived nonconformity with gender stereotypes; namely, because of their perception that he was insufficiently masculine or not a real man. See id. Defendants rely on the same sex stereotyping argument in their response to Mr. Johnston s Equal Protection claim. Defendants argue that, because two of the cases Mr. Johnston cites in support of his Equal Protection claim allegedly involve only sex stereotyping claims (they do not), only a sex stereotyping claim can be subject to heightened scrutiny. This is a misreading of applicable law heightened scrutiny applies to any claim of discrimination based on sex or transgender status, not just a claim focused on sex stereotyping. In any case, because the very concept of being transgender, by definition, includes noncompliance with gender stereotypes, a claim based on transgender status triggers heightened scrutiny. Defendants post-hoc rationalization for their discriminatory conduct (student privacy interests) is factually unsupported by any allegations in the Complaint, and presents, at best, a fact intensive inquiry that must be decided by a jury. Even if considered, Defendants rationalization does not satisfy rational basis review, see Opp. Br. at 19, let alone heightened scrutiny which requires demonstrating an exceedingly persuasive justification. Defendants ignore that courts have explicitly rejected the desire to protect the privacy interests of students disrobing in a communal locker room for gym class as a legitimate privacy concern. Instead, they attempt to distinguish these cases based on the kind of anti-discrimination law involved or on the supposed basis that important countervailing rights were not implicated in those cases. Reply at They are wrong. With respect to Mr. Johnston s breach of contract claim, Defendants merely present a fact-based argument regarding their purported intent (or lack thereof) to form a contract an argument inappropriate at this state of the case, where facts in the Complaint are presumed to be 3

10 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 10 of 37 true. Defendants fail to distinguish the case law explicitly holding that a breach of contract claim may be founded upon the violation of a college policy or guidelines such as the University s nondiscrimination policy here. They argue that the policy was never intended to constitute an offer in the nature of a contract that would be accepted upon a student s enrollment and payment of tuition (in effect, they argue that the policy was never intended to be enforced). However, Defendants cannot escape controlling Pennsylvania case law explicitly recognizing that contractual relationships and obligations can arise from documents such as the nondiscrimination policy at issue. In any event, these arguments are wholly inappropriate for a motion to dismiss. With respect to Mr. Johnston s PHRA and PFEOA claims, Defendants cite no authority for the proposition that the Complaint must affirmatively allege that Mr. Johnston has exhausted his administrative remedies. What matters is whether Mr. Johnston did exhaust his administrative remedies. He did. And, as with other aspects of Mr. Johnston s Complaint, the question of exhaustion is a question of fact for Defendants to prove at trial, and is inappropriate for decision on a motion to dismiss. Finally, in their Reply, Defendants invoke for the first time an entirely new theory for dismissing claims against some of the individual defendants that the Complaint does not make sufficient individualized allegations against these defendants. This new argument should be disregarded because it is improperly raised for the first time in a reply brief, but to the extent the Court considers it, it has no merit: the Complaint is replete with detailed allegations describing Defendants Nordenberg, Spectar, and others, and the role they played in the discrimination against Mr. Johnston. See Complaint at 48, 52, 55, 58, 60, 62-63, 65, 67-69, Finally, it also is important for the Court to take notice of factual contentions not addressed in Defendants Reply that remain undisputed. Defendants do not dispute that Mr. Johnston is legally, socially, and medically recognized as male, nor that a person s sex is defined 4

11 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 11 of 37 by several characteristics most prominently gender identity rather than simply by a person s chromosomes. Defendants also do not dispute that Mr. Johnston, at this stage of the case, need only allege facts sufficient to raise a reasonable expectation that discovery will reveal evidence of the necessary elements a complaint that alleges facts that explain how, when, and where, like Mr. Johnston s has, is sufficient. See Opp. Br. at Defendants also do not dispute that critical matters at issue are factual ones inappropriate for resolution on a motion to dismiss, including whether the University had any legitimate interest that could justify its discriminatory conduct and whether a contract existed between the University and Mr. Johnston. These undisputed points, standing alone, demonstrate that dismissal at this stage is inappropriate. ARGUMENT I. DEFENDANTS VIOLATED TITLE IX 3 BY DISCRIMINATING AGAINST MR. JOHNSTON BASED ON HIS SEX AND TRANSGENDER STATUS A. Discrimination Claims by Transgender Plaintiffs Like Mr. Johnston Are Not Limited to Sex-Stereotyping Claims State and federal courts and agencies in recent years virtually have been unanimous in holding that discrimination based on transgender status is prohibited under federal sex discrimination statutes like Title IX and Title VII. See Opp. Br. at (citing cases). Defendants attempt to distinguish these cases by arguing they support only a claim of sex stereotyping that is,... that Defendants challenged conduct was based on Plaintiff s failure to act according to socially prescribed gender roles, and that here the Complaint somehow makes insufficient allegations of sex stereotyping. Reply at 3. Defendants are wrong on both counts: Title IX is not limited to protecting claims of discrimination based on a perceived failure 3 As noted in the Opposition Brief (pp ), because the PHRA and PFEOA are interpreted in accordance with federal nondiscrimination law, including Title VII and Title IX, Plaintiff s claims of sex discrimination under the PHRA and PFEOA are valid for the same reasons that his Title IX claim is valid. 5

12 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 12 of 37 to conform to sex or gender stereotypes. And, even if it was, the instant Complaint more than adequately alleges that Defendants discriminated against Mr. Johnston based on their perceptions that he did not sufficiently conform to their gender stereotypes of what a man is or should be. Defendants contend that claims for sexual orientation discrimination are not actionable under Title IX. See Reply at 8-10 (citing Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) and Prowel v. Wise Bus. Forms, 579 F.3d 285 (3d Cir. 2009)). Defendants argue that these [c]ases involving gay and lesbian plaintiffs are instructive when examining claims brought by transgender plaintiffs, see Reply at 2 n.1, but they fail to demonstrate why or even how these cases are instructive under Title IX, other than to suggest that gay and lesbian plaintiffs and transgender plaintiffs alleging discrimination sometimes invoke similar theories. Reply at 2 n.1. Defendants also contend that, because discrimination claims by gays and lesbians are only actionable under Title IX if they make allegations of gender stereotyping discrimination, discrimination claims by transgender plaintiffs under Title IX also are limited to claims of sex stereotyping. See Reply at 10 ( Plaintiff cannot base his Title IX and Pennsylvania statutory claims on allegations of purported discrimination based on his transgender status alone. Instead, his Complaint must contain allegations of sexstereotyping. ). The law is to the contrary. Defendants contention that claims for sexual orientation discrimination are not actionable under Title IX is irrelevant because Bibby and Prowel say nothing about what a transgender plaintiff must allege to assert a Title IX sex discrimination claim. In Bibby, the Third Circuit stated that discrimination may be found where the harasser displays hostility to the presence of a particular sex or where discrimination was motivated by a belief that the victim did not conform to the stereotypes of his or her gender. 260 F.3d at The Court then affirmed the dismissal of the plaintiff s claims because he did not even argue that he was 6

13 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 13 of 37 being harassed because he was a man, nor did he claim that he was harassed because he failed to comply with societal stereotypes of how men ought to appear or behave. Id. at 264. That is, the Court held that the plaintiff s claim was only a sexual orientation discrimination claim, which federal courts regularly have held is not actionable under Title VII. Id. Mr. Johnston s Complaint, however, alleges that Defendants singled Mr. Johnston out based on his sex, his perceived nonconformity with gender stereotypes, and/or his transgender status, forcing him to use a unisex referee s locker room (Complaint at 48), refusing to update his student records (id. at 52, 55, 58), issuing him citations for using the men s locker room and restrooms (id. at 60, 62, 67), barring him from the men s locker room and restrooms (id. at 63, 65, 69), and ultimately expelling him for using the men s locker room and restrooms (id. at 68, 71-72). Bibby and Prowel 4 stand at most only for the proposition that a sex-discrimination claim by a non-transgender gay or lesbian plaintiff may be actionable if there are allegations that the discrimination was based on nonconformity with gender stereotypes, rather than on their sexual orientation alone. These cases do not address what is necessary to establish a valid sexdiscrimination claim by a transgender plaintiff under Title VII or Title IX. Here, Mr. Johnston has alleged that Defendants discriminated against him because of his sex, his transgender status, and his failure to conform to gender stereotypes, and not because of his sexual orientation (an issue not even raised in the Complaint). 5 4 In Prowel, the Third Circuit declined to dismiss a sex-discrimination claim brought by a gay employee under Title VII where the employee had alleged harassment based on gender stereotypes. 579 F.3d at 291. The Court allowed the claim to proceed even though it recognized that the line between sexual orientation discrimination and discrimination because of sex can be difficult to draw. Id. 5 Courts recently have allowed Title VII discrimination claims filed by gay or lesbian plaintiffs to proceed based on a gender stereotype theory even absent substantial allegations regarding gender nonconformity. See Terveer v. Billington, 2014 WL at *9 (D.D.C. Footnote continued 7

14 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 14 of 37 Defendants argument that only sex stereotyping discrimination is prohibited under Title IX relies on a distortion that confuses claims of sexual orientation discrimination (which some courts have held is not protected under Title IX) with gender identity discrimination (which courts and the Department of Education, the federal agency charged with enforcing Title IX, have concluded is prohibited under Title VII and Title IX). Courts have recognized that these are completely different facets of a person s identity and have rejected attempts to conflate sexual orientation claims with transgender discrimination claims. See Tronetti v. TLC HealthNet Lakeshore Hosp., 03-CV-0375E(SC), 2003 WL , at *4 n.15 (W.D.N.Y. Sept. 26, 2003) ( Inasmuch as transsexualism does not involve sexual orientation, i.e., being attracted to members of one s own sex, there is no risk of impermissible bootstrapping protection for sexual orientation under Title VII. ); Maffei v. Kolaeton Indus., Inc., 626 N.Y.S.2d 391, (N.Y. Sup. Ct. 1995) ( [T]here is a clear distinction between homosexuals and transsexuals. Because Congress may have chosen not to include the term sexual orientation in title VII does not mean that it has considered and declined coverage to transsexuals. ). Indeed, in Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006), the court explicitly held that the failure of numerous attempts to broaden Title VII to cover sexual orientation says nothing about Title VII s relationship to sexual identity, a distinct concept that is applicable to homosexuals and heterosexuals alike. Id. at 212 (emphasis in original). 6 Footnote continued from previous page Mar. 31, 2014) (complaint brought by employee fired because of his sexual orientation held to state a claim for relief under Title VII where the complaint alleged that the employee was fired because he did not conform to the Defendant s gender stereotypes associated with men, but bulk of allegations concerned discrimination based on plaintiff s sexual orientation). 6 The Schroer court recognized that the sexual orientation line of cases is irrelevant to the issue of what must be pleaded for a sex-discrimination claim by a transgender individual. Id. Footnote continued 8

15 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 15 of 37 Defendants next argue that the numerous cases Mr. Johnston cites in which courts found that transgender plaintiffs had stated valid claims of sex discrimination basically align with Third Circuit precedent because they involve sex stereotyping. Reply at (citing Brumby, Smith, Schroer, Schwenk, Mitchell and Macy). This is a mischaracterization of these decisions. Each of these cases involved discriminatory conduct directed at a transgender person specifically because of his or her transgender status, as alleged here. None required allegations of sex stereotyping distinct from discrimination based on the plaintiff s transgender status. See Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (recognizing sex discrimination claim where transgender woman was fired for revealing her transsexuality and her intent to transition from male to female); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (same); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (recognizing sex discrimination claim where transgender woman was targeted for sexual assault due to her transgender status); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (holding employer had engaged in unlawful sex discrimination where job offer to transgender woman was rescinded after she revealed her transsexuality and her intent to transition from male to female); Mitchell v. Axcan Scandipharm, Inc., Civ. A. No , 2006 WL , at *2 (W.D. Pa. Feb. 17, 2006) (recognizing sex discrimination claim where transgender woman was fired for transitioning from male to female); Macy v. Holder, EEOC Appeal. No , 2012 WL (E.E.O.C. Apr. 20, 2012) (recognizing sex discrimination claim where job offer to transgender woman was rescinded after she revealed her transsexuality and her intent to transition from male to female). Footnote continued from previous page at 212 ( [T]he term sex literally and scientifically applies to transsexuals, but not to homosexuals or transvestites. ) (internal citations omitted). 9

16 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 16 of 37 The courts also have held that [a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (emphasis added). There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms. Id. (holding transgender plaintiff stated a sex-discrimination claim based on transgender status, and rejecting employer s one putative justification for employee s firing: his purported concern that other women might object to [plaintiff s] restroom use ). Likewise, as the EEOC concluded in Macy v. Holder, intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination based on... sex, and such discrimination therefore violates Title VII. EEOC Appeal. No , 2012 WL , at *11 (E.E.O.C. Apr. 20, 2012) (emphasis added). 7 Defendants likewise fail to distinguish the cases cited in Mr. Johnston s Opposition Brief in which courts and agencies held that anti-discrimination statutes such as Title IX prohibit discrimination against transgender individuals. In Doe v. Yunits, No A, 2000 WL (Mass. Super. Ct. Oct. 11, 2000), the court recognized a claim of gender discrimination where a school disciplined a transgender girl for wearing female clothes permitted 7 Defendants seek to distinguish Macy v. Holder on the basis that, although it does suggest that a Title VII claim might be premised on transgender status alone (in fact, the EEOC explicitly held that discrimination based on transgender status alone is actionable under Title VII), that is not the law in the Third Circuit. Reply at (citing Bibby, 260 F.2d 257 (3d Cir. 2001) and Prowel, 579 F.3d 285 (3d Cir. 2009)). Similarly, Defendants argue that to the extent the other cases Mr. Johnston cites do not align with Bibby and Prowel, they cannot override controlling Third Circuit precedent. Reply at 10. But Bibby and Prowel concern only claims of sexual orientation discrimination, not gender identity discrimination. Defendants have not identified any decision from the Third Circuit holding that Title VII does not prohibit discrimination based on transgender status alone. 10

17 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 17 of 37 for non-transgender female students under the school s dress code policy. The court held that the policy was being applied to [the student] in a gender discriminatory manner. Id. at *6-7. The case did not concern only the potential applicability of the Price Waterhouse sex stereotyping theory of sex discrimination. Cf. Reply at 18. In Logan v. Gary Community School Corp., No. 2:07-CV-431JVB, 2008 WL (N.D. Ind. Sept. 25, 2008), the court declined to dismiss a transgender student s Title IX claim for discrimination after being denied entry to the school prom for wearing a dress. Id. at *4. The court permitted the student, as Defendants acknowledge (Reply at 18), to demonstrate, as a factual matter, that the reason for his exclusion was because of his sex. Id. In neither case did the court hold that the discrimination claims were limited to claims of sex stereotyping. 8 Defendants also fail to distinguish cases in which courts and agencies have held that antidiscrimination statutes like Title IX prohibit discrimination against transgender students by singling them out for exclusion to restroom facilities consistent with their gender the very conduct at issue in this case. In Doe v. Regional School Unit 26, 86 A.3d 600 (Me. 2014), the Maine Supreme Court held that a school prohibition on a transgender girl from using the girls restroom constituted unlawful discrimination under a state anti-discrimination statute. Likewise, in Mathis v. Fountain-Fort Carson School District 8, Charge No. P X Colo. Div. Civ. Rights (June 17, 2013), available at the Colorado Division of Civil Rights held that prohibiting a transgender girl from using the girls restroom violated a state anti- 8 Defendants further attempt to distinguish these cases on the basis that free speech rights occupied most of the court s attention (Reply at 18) is unavailing. Whether these courts devoted more pages of their opinions to the issue of gender identity discrimination or a separate issue is irrelevant. 11

18 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 18 of 37 discrimination statute. The agency found that the restroom restriction created an exclusionary environment, which tended to ostracize the [student], while noting that the student had to plan her restroom visits to ensure that she has sufficient time to get to one of the approved restrooms. Telling the [student] that she must disregard her identity while performing one of the most essential human functions constitutes severe and pervasive treatment, and creates an environment that is objectively and subjectively hostile, intimidating or offensive. Id. at Defendants attempt to distinguish these cases on the basis that they concern unspecified different circumstances and applied state anti-discrimination laws, not Title IX. Reply at 19 n.16. Defendants, however, fail to demonstrate why the reasoning of the Maine Supreme Court and the State of Colorado should be disregarded in their finding that depriving a transgender student of access to a gender-appropriate restroom, as was done to Mr. Johnston here, constitutes unlawful discrimination and results in serious injury to the student discriminated against. 9 9 Defendants ignore the federal government s position that a transgender individual, like Mr. Johnston, should be allow[ed] access to restrooms and... locker room facilities consistent with his or her gender identity. U.S. OFFICE OF PERS. MGMT., GUIDANCE REGARDING THE EMPLOYMENT OF TRANSGENDER INDIVIDUALS IN THE FED. WORKPLACE (2011), available at Defendants also ignore the Resolution Agreement reached between the U.S. Departments of Education and Justice with the Arcadia Unified School District that stated [a]ll students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX and Title IV. Opp. Br. at Defendants argue that the resolution should be disregarded because it does not constitute an administrative regulation or rulemaking under Title IX, a legislative amendment to Title IX, or a judicial decision interpreting Title IX. Reply at 17 n.15. This is wrong an agency s interpretation of federal laws, whatever its form, merits deference and should be considered. See Borough of Lansdale v. PP&L, Inc., 426 F. Supp. 2d 264, 302 (E.D. Pa. 2006) ( [A]n agency s interpretation may merit some deference whatever its form, given the specialized experience and broader investigations and information available to the agency[.] ) (quoting United States v. Mead Corp., 533 U.S. 218 (2001)) (some internal quotations omitted); see also Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384, 389 (3d Cir. 2005) (a federal agency s interpretation in this case is both helpful and persuasive, particularly in light of the agency s ongoing consideration of this matter and expertise in [this] area ). The interpretive guidance provided by the federal agencies charged Footnote continued 12

19 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 19 of 37 To the extent there is any remaining question as to whether Title IX extends to claims by transgender students based on gender identity alone, the U.S. Department of Education the federal agency charged with enforcing Title IX (see 20 U.S.C. 1682) has recently explicitly confirmed, in guidance made available just last month (after the Opposition Brief was filed), that Title IX s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity. See U.S. DEP T OF EDUC. OFFICE FOR CIVIL RIGHTS, QUESTIONS AND ANSWERS ON TITLE IX AND SEXUAL VIOLENCE (Apr. 29, 2014), available at title-ix.pdf (emphasis added). Courts have instructed that deference must be given to the Department of Education in its interpretation of Title IX, as the agency charged with administering that statute. See Williams v. School Dist. of Bethlehem, Pa., 998 F.2d 168, 171 (3d Cir. 1993) (citation omitted) ( We accord [the Department of Education]'s interpretation of the regulation appreciable deference. ) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)); see also Udall v. Tallman, 380 U.S. 1, 16 (1965) ( When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration. ). Title IX s prohibition of sex discrimination must be understood to prohibit discrimination on the basis of transgender status (i.e., gender identity ). B. Mr. Johnston Has Sufficiently Alleged a Claim for Sex-Stereotyping Discrimination Under Title IX Even if Defendants were correct that the Complaint must allege specific facts of sexstereotyping distinct from allegations of discrimination based on sex or transgender status, the Footnote continued from previous page with the enforcement of Title IX should be considered here. 20 U.S.C. 1682; Exec. Order No , 45 Fed. Reg (1980). 13

20 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 20 of 37 Complaint in the instant matter does allege discrimination based on Mr. Johnston s perceived failure to conform to gender stereotypes. While Defendants acknowledge this (Reply at 4), they nonetheless argue that the allegations in the Complaint are insufficient because, they claim, the allegations are merely a formulaic recitation of the elements of a cause of action for sexstereotyping that is insufficient under the heightened pleading standard required under Ashcroft v. Iqbal, 556 U.S. 662 (2009). 10 They also contend that Mr. Johnston failed to allege that he was discriminated against because his or her behavior and appearance did not conform to what was expected of his or her gender i.e., because of sex stereotyping. Id. at 4, 22. These arguments are unavailing. Even if Mr. Johnston were required to plead allegations of a cause of action for sex-stereotyping, the Complaint alleges, repeatedly, that Defendants discriminated against Mr. Johnston because of his perceived failure to comply with stereotypical gender norms. Mr. Johnston s Complaint alleges that Defendants singled Mr. Johnston out based on his sex, his perceived nonconformity with gender stereotypes, and/or his transgender status, forcing him to use a unisex referee s locker room (Complaint at 48), refusing to update his student records (id. at 52, 55, 58), issuing him citations for using the men s locker room and 10 Despite Defendants comparisons, the insufficient pleadings in Iqbal have little in common with the clear and specific pleadings in Mr. Johnston s complaint. In Iqbal, following the September 11, 2001, terrorist attacks, respondent Iqbal, a Pakistani Muslim, was arrested on criminal charges and detained by federal officials under restrictive conditions. Id. at 667. Iqbal filed a Bivens action against numerous federal officials, including the petitioners: the former Attorney General and the Director of the Federal Bureau of Investigation. The Court found that Iqbal s claims against the petitioners rest[ed] solely on [the Attorney General s and Director s] ostensible policy of holding post-september-11th detainees... Id. at 682 (citing complaint). The Court expressed no opinion concerning the sufficiency of [plaintiff s] complaint against the [other, non-petitioner] defendants whom the complaint alleged had committed discrete wrongs. Id. at To be sure, Mr. Johnston s complaint is not based only on Defendants general policy, but on the specific discriminatory acts discrete wrongs each Defendant directly engaged in against him. See Complaint at 48, 52, 55, 58, 60, 62-63, 65, 67-69,

21 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 21 of 37 restrooms (id. at 60, 62, 67), barring him from the men s locker room and restrooms (id. at 63, 65, 69), and ultimately expelling him for using the men s locker room and restrooms (id. at 68, 71-72). In short, Mr. Johnston s Complaint specifically alleges that Defendants discriminated against Mr. Johnston because of his perceived nonconformity with gender stereotypes: because of their perception that he was insufficiently masculine or, in other words, that he was not a real man. See Id. The Complaint alleges that Defendants targeted Mr. Johnston for this disparate treatment solely because, unlike most other male students, he was assigned the sex of female at birth. These allegations are more than sufficient to support[] a gender stereotyping claim. Cf. Reply at 10 n.9. Moreover, the facts alleged in the Complaint are nearly indistinguishable from those alleged in Mitchell, where the court recognized a sex-discrimination claim under Title VII based on sex stereotypes WL at *2. Defendants make no attempt to demonstrate otherwise. In Mitchell, in which the Western District of Pennsylvania held that plaintiff, a preoperative male-to-female transgender individual had stated a claim for sex discrimination under Title VII and the PHRA, the plaintiff alleged the following facts: she is a transgender female that suffers from gender identity disorder; although plaintiff s assigned sex was male, her brain gender is female ; she presented at work as female and was subject to harassment by the employer... as a result of her sex... and told to stay alone and use a separate bathroom. Complaint at 2-6, Mitchell v. Axcan Scandipharm, Inc., Civ. A. No , 2006 WL (W.D. Pa. Feb. 17, 2006). On the basis of these allegations, the Mitchell court ruled that plaintiff had included facts showing that his [sic] failure to conform to sex stereotypes of how a man should look and behave was the catalyst behind defendant s actions, plaintiff has sufficiently pleaded claims of gender discrimination. Mitchell, 2006 WL at *2. Here, Mr. Johnston has alleged precisely the same kinds of facts that were held sufficient to state a claim for sex 15

22 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 22 of 37 discrimination based on sex stereotypes. See Complaint at 1, 52. The Second Amended Complaint not only asserts that Defendants unlawfully engaged in discrimination based on his perceived nonconformity with gender stereotypes, but specifically alleges that Mr. Johnston is transgender; that he was assigned the sex of female at birth, but identifies, lives, and is medically recognized as a male; and that Defendants refused to permit him to use facilities designated for men on campus until he obtained a birth certificate reflecting his male sex. Id. These allegations are ample to state a sex discrimination claim based on sex stereotyping under Title IX. II. MR. JOHNSTON HAS SUFFICIENTLY PLED DISCRIMINATION BASED ON SEX UNDER THE EQUAL PROTECTION CLAUSE The Second Amended Complaint alleges facts sufficient to state a claim for discrimination under the Equal Protection Clause. See Opp. Br. at Defendants purported justification for their discriminatory conduct towards Mr. Johnston is an improper factual assertion that fails to satisfy even the rational basis standard, let alone the intermediate scrutiny standard that, in fact, applies. See Id. A. Mr. Johnston s Equal Protection Claim Is Subject to Intermediate Scrutiny Mr. Johnston s Equal Protection claim is subject to intermediate scrutiny. See Opp. Br. at (citing Glenn v. Brumby, 663 F.3d 1312, (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566, 577 (6th Cir. 2004)). Defendants, again, are incorrect in asserting that a sex discrimination claim made by a transgender person is subject to heightened scrutiny only if plaintiff alleges gender stereotyping. Reply at In support of their argument, Defendants rely entirely on the observation that two of Mr. Johnston s cited cases, Brumby and Smith, involve sex stereotyping allegations that Defendants contend are missing from the Complaint here. But nothing in these cases (or any other cited by Defendants) suggests that 16

23 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 23 of 37 transgender plaintiffs cannot make constitutional claims for sex discrimination unless they are explicitly premised on a sex stereotyping theory. 11 In Brumby, at issue was whether allegations of discrimination against an employee on the basis of her transgender status and failure to conform to gender stereotypes vis-à-vis her attire were sufficient to state an Equal Protection claim. The Eleventh Circuit held that such actions constitute[d] sex-based discrimination under the Equal Protection Clause. 663 F.3d at The Court in Brumby explicitly recognized that a transgender person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes, 663 F.3d at 1316 (emphasis added) thus clarifying that there is no legally relevant distinction between discrimination claims based on transgender status and discrimination claims based on perceived gender non-conformity. Likewise, in Smith, the Sixth Circuit recognized a claim for sex discrimination under the Equal Protection Clause where a transgender woman alleged a job offer was rescinded after she revealed her transsexuality and her intent to transition from male to female. Smith, 378 F.3d at 575. The Court held that discrimination against a plaintiff who is a transsexual and therefore fails to act and/or identify with his or her gender is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical terms, did not act 11 Mr. Johnston has explicitly alleged that Defendants discriminatory actions in violation of the Equal Protection Clause were based on his perceived nonconformity with gender stereotypes. Defendants additional argument that the cases cited by Mr. Johnston conflict with controlling Third Circuit precedent (Reply at 25 n.20) fails for the reasons set forth supra in Section I.A. namely, there is no Third Circuit precedent requiring a transgender plaintiff to make allegations of sex stereotyping, distinct from allegations of sex or transgender status discrimination, with respect to discrimination claims under Title IX, the Equal Protection Clause, or otherwise. 17

24 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 24 of 37 like a woman. Id. 12 Mr. Johnston s Complaint alleges that he was discriminated against on the basis of his sex and transgender status (which, by definition, includes perceived nonconformity with gender stereotypes). Under applicable Equal Protection jurisprudence, heightened scrutiny applies to such claims and Defendants attempt to limit the applicability of heightened scrutiny only to standalone sex stereotyping claims is contrary to the case law. B. Defendants Post-Hoc Justification for Their Discriminatory Conduct Is Unsupported by Any Allegations or Evidence Whatsoever, Is Contrary to Law, and Raises a Factual Issue That Must Be Decided at Trial Regardless of the level of scrutiny that applies to Mr. Johnston s Equal Protection claim, Defendants have not demonstrated even a rational basis for discriminating against Mr. Johnston, much less a exceedingly persuasive one. Opp. Br. at 19. Defendants argument that they were concerned with protecting the privacy of students to undress in a shared locker room space their only purported justification for their discriminatory treatment is unsupported by any allegations in the Complaint (or any factual evidence whatsoever). This purported privacy interest is merely a post-hoc rationalization that makes its appearance for the very first time in self-serving statements of counsel in briefs filed in response to Mr. Johnston s Complaint. The merit of Defendants post-hoc rationalization for their discrimination is a factual question which is inappropriate for resolution on a motion to dismiss. 13 See Opp. Br. at 26-27; see also Greco v. 12 Defendants do not seek to rebut Mr. Johnston s argument that transgender status is a protected classification under the Equal Protection Clause (even outside of its protection as a subset of sex discrimination), beyond referring to Mr. Johnston s concession that the Third Circuit has not ruled on that question. Reply at 25. Regardless of whether it has been decided before, this issue is before the Court now and the Court should (to the extent necessary) find that transgender status is a suspect or quasi-suspect classification to which heightened scrutiny applies. See Opp. Br. at Courts have ruled that the question of whether such a privacy right in the locker room exists must be presented to a jury as a question of fact. See Spragg v. Shore Care, 679 A.2d 685, 695 (N.J. Super. Ct. App. Div. 1996). In cases where defendants allege privacy-based Footnote continued 18

25 Case 3:13-cv KRG Document 23 Filed 05/19/14 Page 25 of 37 Senchak, Civ. A. No. 3: , 2013 WL , at *10 (M.D. Pa. Aug. 26, 2013) ( [D]efendants proffered reason is unsupported by the Complaint s allegations and the record. As such, plaintiff has met his burden of pleading lack of rational basis at this stage. ). The University s alleged need to protect other male students from having to be near Mr. Johnston in a locker room or restroom is simply not a rational basis to discriminate against him. Defendants do not dispute that they would have allowed Mr. Johnston to use the men s locker room if he had obtained an amended birth certificate or court order reflecting his male sex. Opp. Br. at 26. Defendants fail to explain how their concern for other students privacy (in effect, a privacy right to be free of view from transgender individuals) would be eliminated if Mr. Johnston were to provide a court order or birth certificate proving his male gender (these being the documents that Defendants arbitrarily determined would be necessary from Mr. Johnston to allow him to use gender-appropriate facilities), rather than accepting his Pennsylvania driver s license that showed his male sex, evidence of his medical treatment for gender transition, or the simple fact of his male gender identity, which the scientific community recognizes as the most reliable indicator of a person s sex. 14 Footnote continued from previous page justifications for facially discriminatory practices, defendants have the further burden of proving that there are no reasonable alternatives. See Olsen v. Marriott Int l, Inc., 75 F. Supp. 2d 1052, 1071 (D. Ariz. 1999) ( [C]ourts... regularly require the employer to prove there are no reasonable alternatives to the sex-based hiring practice. ). 14 Defendants now purport to describe Mr. Johnston as anatomical[ly] female rather than biologically female, as they previously did. Compare Reply at 26 with MTD at 8. Defendants fail to explain what exactly the phrase anatomical female means or to identify any way in which that assertion is reflected in the pleadings. Indeed, to the contrary, Mr. Johnston has pled that he has undergone hormone therapy that causes the development of male secondary sex characteristics, Complaint at 26, and that he is medically recognized as a man. Complaint at 1. Defendants shift in language does not come close to addressing the fatal flaws in their position. The consensus of courts and the scientific community is that a person s sex is not Footnote continued 19