District Judge Finds School District's Exclusionary Bathroom Policy Likely Violates Equal Protection

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his well-reasoned and comprehensive 48 page opinion in Evancho v. Pine-Richland School District, Judge Mark Hornak of the Western District of Pennsylvania has issued a preliminary injunction against a school policy that limits students to facilities that "correspond to their biological sex" or to "unisex facilities," finding that the policy likely violates the Fourteenth Amendment's Equal Protection Clause.

The Pittsburgh-area school district passed Resolution 2 in 2016 by a close vote (5-4), after Resolution 1 which would have preserved the status quo failed to pass in a tied vote (4-4), after meetings and after some sporadic parental complaints.  The policy seemed focused on three transgender students, including the named plaintiff Juliet Evancho, the sister of Jackie Evancho who sang at the President's January inauguration.  As Judge Hornak relates, before 2016 "there were simply no issues or concerns" about the plaintiffs and everyone in the school district treated the students "consistently with their gender identities."  He added that the "most distinctive and illustrative evidence of this is that Juliet Evancho ran for Homecoming Queen in 2016, and she was elected by her peers to the “Homecoming Court” of finalists for that honor." 

After extensively discussing the record, including the school district's privacy concerns, Judge Hornak found there was a indeed a classification being made, the plaintiffs being "distinguished by governmental action from those whose gender identities are congruent with their assigned sex" and the "only students who are not allowed to use the common restrooms consistent with their gender identities.” Later in the opinion, Judge Hornak discussed the unsatisfactory solution of the "safety valve" of unisex facilities:

the law does not impose on the Plaintiffs the obligation to use single-user facilities in order to “solve the problem.” In these circumstances, that would compel them to use only restrooms inconsistent with their gender identities or to use the “special” restrooms. That is a choice directed by official edict, and it is not a choice compelled of other students. It is no answer under the Equal Protection Clause that those impermissibly singled out for differential treatment can, and therefore must, themselves “solve the problem” by further separating themselves from their peers.

As to the Equal Protection standard to be applied, Judge Hornak first discussed rational basis but decided that the intermediate scrutiny standard of United States v. Virginia (VMI) for sex classifications was applicable.  The selection of standard rested on the conclusion that "transgender status" is the "epitome of gender noncomformity" and discrimination based on transgender status is "akin to discrimination based on sex."  Additionally, the opinion recited factors determining whether a "new" classification deserves heightened scrutiny.    

In applying the standard, Judge Hornak found that the record did not establish facts that demonstrated there was an important government interest or exceedingly persuasive justification that was substantially related to those interests:

First, such an application of Resolution 2 would not appear to be necessary to quell any actual or incipient threat, disturbance or other disruption of school activities by the Plaintiffs. There is no record of any such thing. ****

Second, Resolution 2 would appear to do little to address any actual privacy concern of any student that is not already well addressed by the physical layout of the bathrooms. The District has stated that Resolution 2 is necessary to protect the privacy of students (presumably including the Plaintiffs), by which the District has stated it means the sanctity of excretory functions. The record simply does not reveal any actual risk (or even an actual risk of a risk) in such regards. ****

Third, Resolution 2 would not appear to have been necessary in order to fill some gap in the District’s code of student conduct or the positive law of Pennsylvania in order to proscribe unlawful malicious “peeping Torn” activity by anyone pretending to be transgender.” There is no evidence of such a gap. The existing disciplinary rules of the District and the laws of Pennsylvania would address such matters. And as noted above, there is no record evidence of an actual or threatened outbreak of other students falsely or deceptively declaring themselves to be “transgender” for the purpose of engaging in untoward and maliciously improper activities in the High School restrooms.”

Fourth, such application of Resolution 2 also would not appear to be supported by any actual need for students to routinely use the comers of the restrooms for changing into athletic gear from street clothes. 

Interestingly, this last consideration seems to have arisen from a "hypothetical matching a personal experience from his own school days" asserted by counsel for the school district.  (Evidence and Professional Responsibility Professors might take note of this).  Judge Hornak opined that perhaps that "reported anecdotal evidence can be treated" as being a "plausible historical recitation of life events," but there was no "record evidence" that this was the situation in the district.

While Judge Hornak found that the plaintiffs would prevail on the Equal Protection Clause claim, the judge did not find a likelihood of success on the Title IX claim in light of the pending Supreme Court case of Gloucester County School Board v. G.G., oral argument scheduled later this month. Section IV of the Judge Hornak's opinion, about 10 pages, coupled with the preliminary footnote regarding the recent Department of Education activities, is an excellent overview of the GG litigation including the pertinent issues. 

Judge Hornak's opinion is also an excellent reminder that whatever might happen in GG at the Supreme Court, there are remaining equal protection issues.  Recall that although the Fourth Circuit in GG centered on Title IX and the administrative law issues, Count I of the original complaint in GG is an equal protection claim.  

 

video: from Lambda Legal representing Evancho