Case 5:17-cv-01249-EGS Document 1 Filed 03/21/17 Page 1 of 31

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
JOEL DOE, a minor; by and through his
Guardians JOHN DOE and JANE DOE,
Plaintiff,

Case No.

1249
--------

COMPLAINT

vs.
BOYERTOWN AREA SCHOOL
DISTRICT; DR. RICHARD FAIDLEY,
in his official capacity as
Superintendent of the Boyertown Area
School District; DR. BRETT COOPER,
in his official capacity as Principal; and
DR. E. WAYNE FOLEY, in his official
capacity as Assistant Principal.

JURY TRIAL REQUESTED

FILED
MAR 2 f 20f7
o..KATEBARKMAN,Cfern

...,,_ _ _ _oep. Clerk

Defendants.

COMPLAINT
Plaintiff Joel Doe, a minor, by and through his Guardians John Doe and Jane
Doe, state as follows:
1.

This case is about the intentional violation of a child's fundamental

right to bodily privacy contrary to constitutional and statutory principles, including
the Fourteenth Amendment, Title IX, invasion of seclusion, and the Pennsylvania's
Public School Code of 1949, which requires separate facilities on the basis of sex.

JURISDICTION AND VENUE
2.

This action arises under 42 U.S.C. §§ 1983 et seq. (the "Civil Rights

Act") to redress the deprivation of rights secured by the Fourteenth Amendment to
the United States Constitution, 20 U.S.C. §§ 1681 et seq. ("Title IX"), the
Pennsylvania Constitution and common law, and the Public School Code of 1949.

 Case 5:17-cv-01249-EGS Document 1 Filed 03/21/17 Page 2 of 31

3.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§

1331, 1343, 1361, and 1367.
4.

The Court has jurisdiction to issue the requested declaratory relief

pursuant to 28 U.S.C. §§ 2201 and 2202 and Federal Rule of Civil Procedure 57.
5.

The Court has jurisdiction to award nominal and compensatory

damages under 28 U.S.C. § 1343(a)(4).
6.

The Court has jurisdiction to award reasonable attorneys' fees and

costs under 28 U.S.C. § 2412, 42 U.S.C. § 1988.
7.

Venue lies in this district pursuant to 28 U.S.C. § 1391(b) and (e),

because a substantial part of the events or omissions giving rise to all claims
occurred in this district where the District Defendant is located.
8.

This Court has personal jurisdiction over Defendants because they are

domiciled in Pennsylvania.

PARTIES
Plaintiff
9.

Plaintiff and his Guardians are citizens of the United States and

residents of Pennsylvania.
10.

Plaintiff Joel Doe is a minor boy. He is a student who began his junior

year at Boyertown Area High School, a public high school in the Boyertown Area
School District, in August of 2016.

Because Joel Doe is a minor, this action is
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brought on his behalf by and through his legal guardians.

Defendant Boyertown Area School District
11.

Boyertown Area School District ("Boyertown SD" or "District") is

organized under the laws of the Commonwealth of Pennsylvania.
12.

The District includes public educational institutions that provide

students a kindergarten through 12th-grade education.
13.

The District and its schools receive federal funds and so are subject to

the requirements of Title IX.
14.

District schools include seven K-6 elementary schools, two 7-9 junior

high schools, and one senior high school serving grades 10, 11 and 12.
15.

Boyertown SD is governed by the Board of School Directors (the

"School Board"), a nine-member elected body that sets policy for the District and
delegates responsibility for the administration of the District to its Superintendent
of Schools, who oversees a number of district-level administrators.
16.

District Defendant is responsible for the enforcement of policies

through its Superintendent, administrators, teachers, and other employees.

Defendant Superintendent Dr. Richard Faidley
17.

Defendant Faidley is the current Superintendent of Boyertown SD and

is sued in his official capacity. At all times relevant to the events described herein,
Superintendent Faidley acted within the scope of his employment as an employee,

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agent, and representative of the School Board. In such capacity, he implemented a
new policy in which student(s) of one sex are permitted to enter and use restrooms,
locker rooms and shower facilities designated for members of the opposite sex.
Upon information and belief, he did so with the consent, knowledge, or ratification
of the School Board; under the School Board's authority, control, and supervision;
and with the actual or apparent authority of the School Board. Upon information
and belief, Superintendent Faidley has final policymaking authority for Boyertown
SD in circumstances not otherwise provided for in the School District Bylaws and
Policies.

Defendant Principal Dr. Brett Cooper
18.

Defendant Cooper is the current Principal of Boyertown Area High

School and is sued in his official capacity. In such capacity, he implemented a new
policy in which student(s) of one sex are permitted to enter and use restrooms,
locker rooms and shower facilities designated for members of the opposite sex.
Upon information and belief, he did so with the consent, knowledge, or ratification
of the School Board; under the School Board's authority, control, and supervision;
and with the actual or apparent authority of the School Board. Upon information
and belief, Principal Cooper has final policymaking authority for Boyertown Area
High School with respect to the day-to-day enforcement of the District's policies,
including the newly adopted policy or practice permitting students of one sex to
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enter and use private facilities like restrooms, locker rooms and shower facilities
with members of the opposite sex.

Defendant Assistant Principal Dr. E. Wayne Foley
19.

Defendant Foley is the current Assistant Principal of Boyertown Area

High School and is sued in his official capacity. In such capacity, he implemented a
new policy in which student(s) of one sex are officially authorized to enter and use
restrooms, locker rooms, and shower facilities designated for members of the
opposite sex. Upon information and belief, he did so with the consent, knowledge or
ratification of the School Board; under the School Board's authority, control, and
supervision; and with the actual or apparent authority of the School Board. Upon
information and belief, Assistant Principal Foley has final policymaking authority
for Boyertown Area High School with respect to the day-to-day enforcement of the
District's policies, including the newly adopted policy or practice permitting
students of one sex to enter and use private facilities like restrooms, locker rooms
and shower facilities with members of the opposite sex.

INTRODUCTION
20.

The importance of privacy has long been considered central to our

western notions of freedom: a measure of personal isolation and personal control
over the conditions of privacy's abandonment is of the very essence of personal
freedom and dignity.

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21.

Defendants purposefully violated Plaintiffs privacy rights and further

attempted to harass and coerce the minor Plaintiff into further privacy violations.
22.

No student should be forced to use multi-user private facilities at

school, like locker rooms and restrooms, with students of the opposite sex.

No

school district ought to violate its students' constitutional and statutory rights,
especially when it means abandoning a common sense practice that long protected
every student's privacy and access to education. Yet the Defendants have taken
precisely these actions in this case.
23.

The term "sex" refers to one's biological/anatomical status as either

male or female.
24.

Sex is fixed at conception, binary, objectively verifiable, and rooted in

our human reproductive nature.
25.

The Defendants secretly authorized a student of the opposite sex to

have unrestricted access to enter and use boys' private facilities.
26.

Upon information and belief, Defendants' policy is grounded in gender

identity theory, which asserts that a person's subjective perception of their own
"gender" should be more important in every conceivable setting than sex, one's
biological/anatomical status as either male or female.
27.

Under gender identity theory, gender is subjectively assumed, not

objectively verifiable, exists on a continuum, and is sometimes fluid.

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28.

By adopting gender identity theory as the basis for regulating access to

private facilities, Defendants are violating sex discrimination law by not protecting
students based on sex but instead imposing an individual's subjective perception of
their gender on other students who value their privacy based on anatomical
differences between the sexes.
29.

This practice has had a severe and negative impact on Plaintiff.

30.

Plaintiff has experienced embarrassment and humiliation, both m

terms of being viewed and v1ewmg a student of the opposite sex in a state of
undress and because of the stigmatization and criticism he received from other
students and adults, fueled by the administration's policy and actions. He also fears
the future embarrassment of meeting students of the opposite sex in the bathroom
when simply relieving himself. He now avoids using the restroom during the school
day because of the ongoing risk of having his privacy violated.
31.

Because of the district's policy and actions, Plaintiff does not feel

secure in the locker rooms or restrooms that are properly set aside for the exclusive
use of boys to protect their privacy from exposure to members of the opposite sex.
32.

The actions and policy violates Plaintiffs fundamental right to bodily

privacy, Title IX, intrusion upon seclusion, as well as Pennsylvania law requiring
separate facilities at our public schools.
33.

Plaintiff asks this Court to declare the Defendants' policy and actions

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unlawful, and order the other relief requested herein.

FACTUAL BACKGROUND
34.

Joel Doe is a student at Boyertown Area High School, where he

lS

enrolled in a physical education ("PE") course.
35.

PE is a mandatory course at the District and

lS

a requirement to

graduate.
36.

It is mandatory that students m PE class change into clothing

appropriate for PE class.
37.

The PE locker rooms have signs which indicate they are either for girls

or for boys.
38.

Joel Doe has always used the boys' locker room and bathrooms

because his sex is male.
39.

Joel Doe had a reasonable expectation that he would have privacy in

the locker rooms and bathrooms in the school from viewing members of the opposite
sex or from being viewed by members of the opposite sex.
40.

On or about October 31, 2016, Joel Doe began changing in the locker

room for PE class, and when he was standing in his underwear about to put his gym
clothes on, he suddenly realized there was a member of the opposite sex changing
with him in the locker room, who was at the time wearing nothing but shorts and a
bra.

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41.

Joel

Doe

experienced

immediate

confusion,

embarrassment,

humiliation, and loss of dignity upon finding himself in this circumstance and
quickly put his clothes on and left the locker room.
42.

Joel Doe, along with various classmates, went to speak to the Assistant

Principal, Dr. Foley, after gym class to let him know what had happened.
43.

Joel Doe informed Dr. Foley that there was a girl in their locker room.

Dr. Foley indicated that the legality was up in the air but that students who
mentally identify themselves with the opposite sex could choose the locker room and
bathroom to use, and physical sex did not matter.
44.

Joel Doe asked whether there was anything that Dr. Foley could do to

protect him from this situation.
45.

Dr. Foley responded that there was nothing he could do and he did not

know what the end result will be.
46.

Dr. Foley told Joel Doe to "tolerate" it and make it as "natural" as he

possibly can.
47.

Prior to Joel Doe leaving, Dr. Foley repeated himself a second time as

Joel Doe was leaving the office, telling him again to be as "natural" as possible.
48.

The District intentionally and purposefully caused Joel Doe's privacy

to be violated.
49.

Boyertown School District did not inform Joel Doe or his Guardians,

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John Doe and Jane Doe, before this incident that they were permitting students of
one sex to enter locker rooms and bathrooms of students of the opposite sex.
50.

Boyertown School District had not informed Joel Doe or his Guardians

that despite the words on locker room and restroom doors, they would no longer
protect Joel Doe's expectation of privacy from viewing or being viewed by members
of the opposite sex when he is present in multi-user private facilities such as
bathrooms and locker rooms.
51.

The District's directive to Joel Doe was that he must change with

students of the opposite sex, and make it as natural as possible, and that anything
less would be intolerant and bullying against students who profess a gender
identity with the opposite sex.
52.

After

Joel

Doe's

privacy

was

violated,

the

District's

actions

marginalized and shamed Joel Doe, and unlawfully attempted to coerce and
intimidate Joel Doe into accepting continuing violations of his bodily privacy.
53.

The anxiety, embarrassment, and stress he feels as a direct result of

Defendants' practice and actions has caused him to refrain from using restrooms as
much as possible, stress about when and if he can use a given restroom without
running into persons of the opposite sex, and opting to hold his bladder rather than
using the school's restroom. This has caused an ever-present distraction throughout
the school day, including during class instructional time.
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54.

Failing to timely void urme has direct and adverse physiological

effects, and the Defendants' policy inhibits Joel Doe from timely voiding.
55.

Joel Doe's Guardians made an appointment to speak with the assistant

principal shortly thereafter, and met with Defendant Dr. Foley on or about
November 2, 2016.
56.

Joel Doe's Guardians explained how Joel Doe's bodily privacy had been

violated by the District's actions and sought answers to ensure it did not happen
again. It was then that Dr. Foley indicated that the school district is "all-inclusive"
and that if Joel Doe had a problem changing or using restrooms with people of the
opposite sex, he would get him permission to go to the nurse's office to change.
57.

Joel Doe's Guardians subsequently met with Dr. Cooper, the principal

of Boyertown High School to voice their concerns. Dr. Cooper was condescending to
Joel Doe's Guardians and stated that he would not do anything because Joel Doe
can simply change in the nurse's office from now on if he does not want to change
around people of the opposite sex.
58.

By mandating that Joel Doe use a nurse's office to change if he wants

privacy, Defendants have prevented him from using the facilities that, by state and
federal law, are provided for use solely by males and that are required to ensure
that students of one sex have their privacy protected from members of the opposite
sex.

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59.

The District further marginalized, intimidated and shamed Joel Doe,

by contacting the Principal at the Vo-Tech school, Berks Career and Technology
School - Oley Campus (BCTS), where Joel Doe also attended half of the day, to
disclose the fact that Joel Doe had gone to the Assistant Principal over the violation
of his bodily privacy.
60.

On or about November 2, 2016, just two days after the incident where

Plaintiffs right to privacy was violated, the principal of BCTS, Mr. Jenkins, pulled
Joel Doe out of class to have what Mr. Jenkins called a "casual conversation" about
the incident at Boyertown High School and stated "he wanted to make sure none of
that negativity was going to happen at his school."
61.

Joel Doe felt harassed, shamed, and bullied by Boyertown School

District's publication to BCTS about the incident and his concerns.
62.

Joel Doe's Guardians scheduled a meeting with the Defendant

Superintendent Dr. Faidley, and Dr. Faidley indicated that if Joel Doe was
uncomfortable changing with those of the opposite sex, or with using the nurse's
office, then he could just withdraw from school and be home schooled, while still
attending Vo-tech if he wished.
63.

The District's actions have forced Joel Doe to stop changing for PE

class, which has resulted in disciplinary action and poor grades by only receiving
half of the day's credit for participating in street clothes rather than gym clothes.
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64.

Joel Doe feels violated, humiliated, and embarrassed by the invasion of

privacy.
65.

Because of the privacy violation, as well as the District's subsequent

actions, Joel Doe also experiences anxiety, stress, intimidation, fear, apprehension
and loss of dignity.
66.

These

daily persistent feelings

of anxiety,

stress,

humiliation,

embarrassment, apprehension, distress, and violation of privacy stay with Joel Doe
and impact him throughout the day, distracting him from instructional time.
67.

Plaintiff is suffering and will continue to suffer irreparable harm

because of the Defendants' actions.
68.

Plaintiff has no adequate remedy at law.

ALLEGATIONS OF LAW
FIRST CAUSE OF ACTION (ALL DEFENDANTS):
VIOLATION OF THE FUNDAMENTAL RIGHT TO PRIVACY
IN VIOLATION OF THE FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION
42 u.s.c. § 1983
69.

Plaintiff realleges all matters set forth above and incorporate them

herein.
70.

The Fourteenth Amendment protects citizens against violation of

fundamental rights by state actors.
71.

Fundamental rights are liberty interests deeply rooted in the nation's
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history and tradition and implicit in the concept of ordered liberty.
72.

Joel Doe has a fundamental right to bodily privacy that, at a

mm1mum, includes protection from intimate exposure of his body and intimate
activities to a person of the opposite sex. It also includes the corollary protection
from intimate exposure to a female's body or intimate activities.
73.

The fundamental right to bodily privacy as to persons of the opposite

sex is deeply rooted in the nation's history and tradition and has been recognized as
flowing from the United States Constitution as well as federal and state statutory
and common law. See, e.g., Doe v. Luzerne County, 660 F.3d 169, 176 n.5 (3d Cir.
2011) (holding that a person has a privacy interest in his or her "partially clothed
body," recognized by various sister circuits, and arising out of the Fourteenth
Amendment); Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 621 (3d Cir. 1992)
(recognizing that the collection of urine sample may constitute an invasion of
privacy if "it involves the use of one's senses to oversee the private activities of
another" since the performance in public of such activities are "generally prohibited
by law as well as social custom" and failure to regard privacy "could constitute a
substantial and highly offensive intrusion upon seclusion").
74.

The fundamental right to bodily privacy is also implicit in the concept

of ordered liberty because a government that compels its citizens to disrobe or
attend to intimate activities in the presence of the opposite sex violates the core of

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personal liberty, and it deprives its citizens of the full benefits afforded to its
citizens when it conditions those benefits on surrendering the right to bodily
privacy.
75.

Throughout its history, American law and society has had a national

commitment to protecting citizens, and especially children, from suffering the risk
of exposing their bodies, or their intimate activities, to the opposite sex.
76.

Our understanding of personal privacy from persons of the opposite sex

is so universal as to require the use of separate facilities on the basis of sex in all
kinds of contexts. See Public School Code of 1949, 24 P.S. § 7-740 (requiring that
facilities "shall be suitably constructed for, and used separately by the sexes"). See

also 43 P.S. § 109 (requiring application of industrial sanitation code to all
employers, which involves separate restrooms); 7 Pa. Code § 1.57 (requiring
separate facilities for meat packers); 7 Pa. Code § 78. 75 (separate restrooms at
eating establishments); 7 Pa. Code § 82.9 (requiring separate facilities on the basis
of sex for seasonal farm labor, "distinctly marked 'for men' and 'for women' by signs
printed in English and in the native languages of the persons" using those
facilities); 28 Pa. Code § 18.62 (requiring "separate dressing facilities, showers,
lavatories, toilets and appurtenances for each sex" at swimming pools); 25 Pa. Code
§ 171.16 (requiring schools to follow the provisions of the Public Bathing Law (35 P.

S. § § 672-680d) and 28 Pa. Code Chapter 18 (relating to swimming and bathing
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places); 28 Pa. Code §19.21 (requiring separate restrooms on the basis of sex at
camps); 28 Pa. Code § 205.38 (requiring separate restrooms at long term care
facilities); 31 Pa. Code § 41.121 (requiring separate facilities for each sex on
railroads); 31 Pa. Code § 41.122 (requiring separate bathrooms to be provided for
each sex and clearly designated and forbidding any person to use or frequent a toilet
room assigned to the opposite sex); 31 Pa. Code § 47.127 (same); 34 Pa. Code §
403.28 (requiring restrooms for each sex); 43 Pa. Code § 41.24 (designating the
entrance of "retiring rooms" to be clearly marked by sex and preventing opposite sex
entry); 43 Pa. Code § 41.31 (requiring separate toilet rooms "for each sex" which
shall be clearly designated and that "no person shall be permitted to use or frequent
a toilet room assigned to the opposite sex"); 43 Pa. Code § 41.32 (requiring
partitions separating toilet rooms on account of sex, which shall be "soundproof').
77.

The importance of personal privacy is also recognized in the context of

discrimination law, and specifically in the situation that Plaintiff faces. See, e.g.,

Livingwell, Inc. v. Pennsylvania Human Relations Com., 606 A.2d 1287, 1290 (Pa.
Commw. Ct. 1992) (citing City of Philadelphia v. Pa. Human Relations Com., 300
A.2d 97 (Pa. Commw. Ct. 1973), and recognizing that employers may hire on the
basis of sex to vindicate "a juvenile's 'privacy interest"' that "would be violated if
required to ... disrobe and shower in front of a staff member of the opposite sex").
"[W]here there is a distinctly private activity involving exposure of intimate body

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parts, there exists an implied bona fide public accommodation qualification which
may justify otherwise illegal sex discrimination. Otherwise ... such sex segregated
accommodations such as bathrooms, showers and locker rooms, would have to be
open to the public." Id. at 1291.
78.

"The standard for recognizing a privacy interest as it relates to one's

body is not limited to protecting one where there is an exposure of an 'intimate
area,' but such a right may also be recognized where one has a reasonable basis to
be protected against embarrassment or suffer a loss of dignity because of the
activity taking place." Id. "To hold otherwise would mean that separate changing
rooms in factories, mines and construction sites where workers change from street
clothes to work clothes and back and where 'intimate areas' are not exposed, would
not be permitted." Id. at 1293 n.6.
79.

Personal privacy is also recognized in the context of criminal law. See,

e.g., id. at 1289 (quoting 18 Pa.C.S. § 5901 to make the point that "certain conduct .
. . between genders is inappropriate. For example, it is a misdemeanor to commit
open lewdness because those who observe it 'would be affronted or alarmed."'). See

also 18 Pa.C.S.A. § 7507.1 (regarding viewing or filming a person in a state of
undress without their consent in a place where a person "would have a reasonable
expectation of privacy"); 18 Pa.C.S.A. § 3127 (regarding the exposure of genitalia in
circumstances where a person should know that it "is likely to offend, affront or
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alarm").
80.

Criminal protections are heightened for children. See, e.g., § 3127(b)

(increasing the severity of an indecent exposure charge based on age).
81.

While pornography involving only adults is legal and cannot be

constitutionally banned, it is illegal to possess, distribute, or even view images of
naked children. See 18 Pa.C.S.A. § 6312.
82.

Nearly every state has a law criminalizing "sexting,'' which is when a

minor sends a naked picture of himself or herself via electronic means. See, e.g., 18
Pa.C.S.A. § 6321.
83.

Because of our national commitment to protect our citizens, and

especially children, from the risk of being exposed to the anatomy of the opposite
sex, as well as the risk of being seen by the opposite sex while attending to private,
intimate needs, sex-separated restrooms and locker rooms are ubiquitous in public
places.
84.

Using public restrooms and locker rooms separated by sex are an

American social and modesty norm.
85.

Historically,

purposefully

entering

a

restroom

or locker

room

designated for the opposite biological sex has been considered wrongful, and even
criminal, behavior.
86.

Freedom from the risk of compelled intimate exposure to the opposite

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sex, especially for minors, is deeply rooted in this Nation's history and tradition.
87.

It is also implicit in the concept of ordered liberty.

88.

The ability to disrobe absent the presence of the opposite sex, along

with the freedom to use the restroom absent the presence of the opposite sex is
fundamental to most people's sense of self-respect and personal dignity.
89.

If the government were granted the far-reaching and extreme power to

compel its citizens to disrobe or risk being unclothed in the presence of the opposite
sex, then little personal liberty involving our bodies would be left.
90.

Because freedom from the risk of compelled exposure to the opposite

biological sex, especially for minors, is deeply rooted in this nation's history and
tradition and implicit in the concept of ordered liberty, it is a fundamental right. See

Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
91.

Specifically: minors have a fundamental right to be free from State

compelled risk of exposure of their bodies, or their intimate activities, such as occur
within restrooms and locker rooms, to the opposite biological sex.
92.

An

abridgement

of

fundamental

rights

is

presumptively

unconstitutional and can only be justified if it survives strict scrutiny under which
the law must serve a compelling state interest by the most narrowly tailored means.
93.

The Defendants' actions and practice violated Doe's fundamental right

to privacy because it allowed a biological female into the boys' locker room and

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subjected Doe to undressing in front of someone of the opposite sex, who was herself
also in a state of undress.
94.

Shocked and distressed, Doe met with Defendant Dr. Foley.

95.

When Doe asked to be protected from the situation, Dr. Foley told him

that there was nothing he could do and that instead, he and his friends would have
to share the boys' locker room with a person of the opposite sex. They were told to
tolerate it and make it as natural as possible.
96.

Even though after Jane Doe and John Doe got involved, Doe was told

that he could use the nurse's office to change for gym class, he was still required to
enter the locker room in order to safely store his belongings. This would still subject
Doe to viewing a person of the opposite sex in state of undress.
97.

Moreover, the policy harms Doe because unless he surrenders his right

to bodily privacy, he can no longer use the locker room designed for use by boys.
98.

While the Public School Code of 1949 requires that facilities "shall be

suitably constructed for, and used separately by, the sexes," 24 P.S. § 7-740,
Defendants' policy violates the requirement of separate facilities and denies Doe the
right to use such a facility, instead conditioning the use of the "boys"' locker room on
surrendering Doe's right to bodily privacy from persons of the opposite sex. See also
25 Pa. Code § 171.7 (requiring separate facilities "for each sex" in schools). Accord
22 Pa. Code § 55.2 (same for private elementary schools); 22 Pa. Code § 57.2(a)

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(same for private secondary schools); 22 Pa. Code § 59.34(a) (same for private
special education schools).
99.

Plaintiff and his Guardians on multiple occasions brought up the policy

with the Assistant Principal, the Principal, and the Superintendent, but their
requests for a change in the District's policy were denied.
100.

Doe and his guardians were told that the school was no longer going to

discuss this issue with them or any parents.
101.

Doe ultimately decided to not change for gym class, which resulted in

failing each gym class.
102.

The Defendants have no compelling interest to justify this violation

Doe's right to bodily privacy from persons of the opposite sex.
103.

The violation of this right is particularly acute where, as here, his right

was first violated without any notice or consent in a place traditionally--and by
state statute--reserved for persons of one biological sex.
104.

The violation was ongoing because it compromises the most intimate

aspects of human affairs and involves a setting traditionally (and by state law)
reserved for persons of one biological sex. It effectively denies the appropriate use of
this setting in a manner conveying sexual harassment and official bullying, and
which is otherwise inconsistent with deeply rooted notions of fundamental personal
interests in personal privacy from persons of the opposite biological sex.
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105.

Defendants failed to employ the least restrictive means of serving any

interest that they may later articulate.
106.

Accordingly, the actions and practice fail strict scrutiny review and are

unconstitutional.
WHEREFORE, Plaintiff respectfully prays that the Court grant the relief set
forth hereinafter in the Prayer for Relief.

SECOND CAUSE OF ACTION (ALL DEFENDANTS):
VIOLATION OF TITLE IX
107.

Plaintiff realleges all matters set forth above and incorporate them

herein.
108.

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).
109.

The School District is a federal funding recipient for purposes of Title

110.

Courts have given Title IX broad effect m order to combat sex

IX.

discrimination in the educational setting.
111.

There is an implied right of action for a student to sue his school and

school officials under Title IX.
112.

Defendants' authorizing people to use restrooms or locker rooms that

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 Case 5:17-cv-01249-EGS Document 1 Filed 03/21/17 Page 23 of 31

are designated for the opposite biological sex violates privacy and creates a sexually
harassing hostile environment.
113.

Unconsented exposure to persons of the opposite-sex in various states

of undress creates a sexually harassing hostile environment.
114.

The policy of the school is to allow those who self-identify with the

opposite biological sex to choose to use locker rooms and restrooms that are
designated for the opposite biological sex.
115.

Joel Doe does not object to students of the same sex using private

facilities with him, no matter how they self-identify, and he has no expectation of
privacy from such students.
116.

This policy needlessly subjects Doe to the risk that his partially

unclothed body will be exposed to the opposite sex and that he will be exposed to a
partially clothed person of the opposite-sex, as actually occurred when the policy
was first implemented.
117.

As a result, Doe experienced embarrassment, humiliation, frustration,

degradation, and loss of dignity.
118.

Doe has been marginalized by other students on account of his

objection to the policy.
119.

Doe is avoiding the restroom as a result of the fear and apprehension

of embarrassment, humiliation, degradation, and loss of dignity he may experience

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 Case 5:17-cv-01249-EGS Document 1 Filed 03/21/17 Page 24 of 31

in the restroom.
120.

Doe has altogether ceased usmg the locker room because of the

legitimate fear that he will again be in a state of undress or exposed to an opposite
sex student in a state of undress.
121.

Doe cannot store his clothes in the locker room since that would again

put him in the locker room where he may be exposed to an opposite sex student in a
state of undress.
122.

Doe is now taking a failing grade every day he does not change.

123.

The policy violates Title IX because it intentionally produces

unwelcome sexual harassment and creates a hostile environment on the basis of sex
and denies access to educational programs and benefits.
124.

In order to make out a Title IX claim: (1) plaintiff must be subjected to

sexual harassment; (2) the harassment must be severe, pervasive, and objectively
offensive; (3) the school must be deliberately indifferent to the harassment; and (4)
the harassment must result in the denial of access.
125.

Doe satisfies all elements.

126.

First, Doe was subjected to harassment because the practice allows

biological females to use the boys' locker rooms and restrooms, which creates a
harassing hostile environment specifically on the basis of the sex of the persons
involved.

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 Case 5:17-cv-01249-EGS Document 1 Filed 03/21/17 Page 25 of 31

127.

Differences in anatomy is the only reason for separate facilities. Were

there no differences in anatomy, there would be no privacy interests justifying
separate facilities in the first place.
128.

These differences do not disappear when biological females self-

identify as males, and vice versa.
129.

Neither state nor federal law obligates Defendants to provide multi-

user private facilities based on what a student wears, whom the student is sexually
attracted to, how the student presents or identifies him or herself, or based on
whether a student identifies with their sex or with the opposite sex.
130.

The anatomical differences between the sexes is the reason that Title

IX and its implementing regulations allow for separate living facilities, restrooms,
locker rooms, and changing areas for each biological sex.
131.

Title IX and its implementing regulations provide for separate living

facilities, restrooms, locker rooms, and changing areas for each biological sex based
on the recognition that permitting a person of one biological sex to enter and use the
facilities designated for the opposite sex would be sexually harassing.
132.

The policy, which opens the boys' restrooms and locker rooms to

biological females, is harassment based on the boys' sex.
133.

Doe experienced humiliation, degradation, and loss of dignity and fears

the same in the future as a result of the policy and practice.
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 Case 5:17-cv-01249-EGS Document 1 Filed 03/21/17 Page 26 of 31

134.

It is the significant and real anatomical differences between the

biological sexes that creates the hostile environment, which is harassment.
135.

Second, the harassment is severe, pervasive, and objectively offensive.

136.

Letting biological females use the boys' restrooms and locker rooms

places the bodily privacy of both sexes at risk, and so is sufficiently egregious to
satisfy the severity prong.
137.

The harassment is ongoing and continuous, preventing Doe from using

the locker room and discouraging him from using the restrooms, thus satisfying the
pervasiveness prong.
138.

The environment is one that a reasonable person would find hostile

and objectively offensive, and one that Doe in fact perceives to be so.
139.

The objective unreasonableness is evident in the fact that we have long

recognized the right to a private setting, free from persons of the opposite sex, when
in a state of undress or performing private functions.
140.

This principle is recognized in numerous areas of the law, as stated

141.

Third, school officials are not only on notice of the hostile environment,

above.

but it is the Defendants' policy that establishes and sustains the hostile
environment.
142.

Moreover, Plaintiff and his

26

Guardians repeatedly notified the

 Case 5:17-cv-01249-EGS Document 1 Filed 03/21/17 Page 27 of 31

individual Defendants, who then told Plaintiff and his Guardians that this is what
the school will be doing as a matter of policy.
143.

The Defendants have authority to rescind their policy which would

resolve the hostile environment created by that policy.
144.

Despite their knowledge that their practice 1s creating a hostile

environment based on sex, the Defendants have not remedied the situation.
145.

Instead, these officials have advised that, if Doe perceives the

environment to be hostile, Doe should remove himself from it by using the nurse's
office.
146.

Schools cannot escape liability for Title IX violations by requiring the

victim of harassment to remove himself from the hostile environment or otherwise
suggesting that he is responsible for the harassment he endures.
147.

The nurse's office "accommodation" creates a separate but unequal

facility that violates Title IX.
148.

Fourth, Doe has been effectively denied the use of facilities that are to

be provided, pursuant to state and federal law, on account of his biological sex.
149.

This has resulted in his inability to change and store his belongings in

the locker room, thus resulting in failing grades during each day of gym class.
150.

Defendants' policy and actions violate Title IX by creating a hostile

environment on the basis of sex.

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 Case 5:17-cv-01249-EGS Document 1 Filed 03/21/17 Page 28 of 31

WHEREFORE, Plaintiff respectfully prays that the Court grant the relief set
forth hereinafter in the Prayer for Relief.

THIRD CAUSE OF ACTION (ALL DEFENDANTS):
INVASION OF PRIVACY -INTRUSION UPON SECLUSION
151.

Plaintiff realleges all matters set forth above and incorporate them

herein.
152.

Defendants purposely opened up the boys' locker room and restroom to

a biological female who identified as a male.
153.

As a result, Doe found himself in only his underwear in the presence of

a biological female, who was wearing nothing above her waist other than a bra.
154.

One's partially clothed body is a private affair, particularly with

regards to a member of the opposite sex.
155.

Defendants' practice, therefore, caused Doe's private affairs to be

intruded upon by being viewed by someone of the opposite sex and intruded upon
his privacy by forcing him to be at a place to see a partially clothed female body.
156.

Laws and social custom have long protected our right to be free from

undressing in the view of someone of the opposite sex and to be free from viewing
someone of the opposite sex undressing.
157.

In particular, laws applicable to public schools require separate

facilities on the basis of sex, which has always been understood to mean on the
basis of biological/anatomical sex.

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 Case 5:17-cv-01249-EGS Document 1 Filed 03/21/17 Page 29 of 31

158.

Defendants' practice failed to give due regard to Doe's privacy.

159.

Therefore, the circumstances in which Doe found himself, particularly

in a setting designed to be private with regards to persons of the opposite sex, would
be highly offensive to the ordinary reasonable person.
160.

Doe lacks ongoing access to the boy's locker room and is discouraged in

his use of the boy's restroom as a result of this invasion of seclusion.
161.

Additionally, Doe has been receiving failing grades in gym class due to

this invasion of seclusion.
WHEREFORE, Plaintiff respectfully prays that the Court grant the relief set
forth hereinafter in the Prayer for Relief.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against the Defendants, jointly
and/or severally, as follows:
A.

A declaration that the Defendants' actions and practice violates

Plaintiffs constitutional right to privacy.
B.

A declaration that Defendants' actions were a violation of the

Pennsylvania School Code of 1949.
C.

A declaration that Defendants committed an unlawful intrusion upon

Plaintiffs seclusion and bodily privacy rights.
D.

A declaration that the Defendants' actions and practice impermissibly

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 Case 5:17-cv-01249-EGS Document 1 Filed 03/21/17 Page 30 of 31

burdens Plaintiffs rights under Title IX to be free from discrimination on the basis
of sex by creating a sexually harassing hostile environment.
E.

A permanent injunction enjoining the District Defendants' policy and

ordering the District Defendants to permit only females to enter and use the
District's girls' private facilities, including locker rooms and restrooms, and only
males to enter and use the boys' private facilities, including locker rooms and
restrooms.
F.

An award of compensatory damages for the violation of Plaintiffs

constitutional and statutory rights;
G.

An order that this Court retain jurisdiction of this matter for the

purpose of enforcing any Orders;
H.

An award of Plaintiffs costs and expenses of this action, including a

reasonable attorneys' fees award, in accordance with 28 U.S.C. § 2412, 42 U.S.C §
1988;
I.

All other relief to which Plaintiff may show himself to be entitled,

including attorneys' fees and costs of court.

DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury on all counts and issues so triable.
Respectfully submitted this 21st day of Marc ,

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 Case 5:17-cv-01249-EGS Document 1 Filed 03/21/17 Page 31 of 31

CATHY R. GORDON, PA 56728*
JACOB KRATT, PA 316920
LITCHFIELD CAVO LLP
420 Fort Duquesne Blvd., Suite 600
Pittsburgh, PA 15222
412-291-8246
412-586-4512 Fax
gordonc@litchfieldcavo.com
kratt@litchfieldcavo.com

JORDAN LORENCE, MN 0125210**
KELLIE FIEDOREK, DC 1015807 FL
74350**
ALLIANCE DEFENDING FREEDOM
440 First St. NW, Suite 600
Washington, DC 20001
(202) 393-8690
jlorence@ADFlegal.org
kfiedorek@ADFlegal.org

RANDALL L. WENGER, PA 86537
Jeremy L. Samek, PA 205060*
INDEPENDENCE LAW CENTER

23 North Front St.
Harrisburg, Pennsylvania
(717) 657-4990
(717) 545-8107 Fax
rwenger@indlawcenter.org
j samek@indlaween ter .org

GARY S. MCCALEB, AZ 018848**
ALLIANCE DEFENDING FREEDOM

15100 N. 90th St.
Scottsdale, Arizona 85260
(480) 444-0020
(480) 444-0028 Fax
gmccaleb@ADFlegal.org

*Application for Admission Forthcoming

**Pro Hae Vice Applications Forthcoming
Attorneys for Plaintiff

31