OPINION*

Mark R. Hornak, United States District Judge.

The three high school student Plaintiffs are each transgender, and all are in their senior year at Pine-Richland (Pa.) High School ("High School"). ECF 43 at ¶ 15. Two of them, Juliet Evancho and Elissa Ridenour, each over eighteen years old, had "male" listed on their birth certificates when they were born.1 That of the third Plaintiff, A.S. (also a high school senior, but not yet eighteen years old), said "female." For some time, Juliet Evancho and Elissa Ridenour have lived all facets of their lives as girls, and A.S. has done so as a boy.

The Defendant School District ("District")2 does not dispute that Plaintiffs identify as transgender, which means, among other things, that their gender identities are at odds with the sexes listed on their original birth certificates and with their external sex organs. ECF 38 at ¶ 2. It is undisputed that in all respects, the Plaintiffs have — at least for their high school years — lived every facet of their in-school and out-of-school lives consistently with their respective gender identities rather than their "assigned sexes."3 Their teachers, school administrators, fellow students and others have treated the Plaintiffs consistently with their gender identities as they have lived and expressed them rather than according to their assigned sexes. ECF 36-4 at ¶¶ 25-26. According to the District, the Plaintiffs, except for purposes of excretory functions, are of the gender with which they identify, and the District treats the Plaintiffs' gender identities as their "sex" in all other interactions with the District. ECF 38 at ¶¶ 3, 4, 5, 9; ECF 36-5 at ¶¶ 12-14; ECF 73 at 73.

The central issue now before the Court is whether the District acted in accord with federal law when it limited, by formal School Board ("Board") Resolution 2,4 the common school bathrooms that these Plaintiffs may use to either (a) single-user bathrooms or (b) the bathrooms labeled as matching their assigned sexes. The Plaintiffs argue that the District's application of Resolution 2 to prevent them from continuing to use common student restrooms that conform to their gender identities violates both Title IX of the Education Amendments of 1972, and the Equal Protection Clause of the Fourteenth Amendment, in the former case by unlawfully discriminating against them based on their sexes, and in the latter case by impermissibly treating them differently than other District students based on their gender identities, and therefore their sexes. The relief Plaintiffs seek in their motion for preliminary injunctive relief is relatively narrow. They seek an order of this Court enjoining the District from enforcing Resolution 2 as to them and restoring the status quo ante as to how the District interacted with the Plaintiffs prior to the enactment of Resolution 2.

The Court concludes that the Plaintiffs have a reasonable likelihood of success on the merits of their Equal Protection claim but not on the merits of their Title IX claim. The Court will therefore grant in part the Plaintiffs' Motion for a Preliminary Injunction, ECF 22; ECF 24. The Court will deny without prejudice the District's Motion to Dismiss both of the Plaintiffs' claims, ECF 34.

I.

Court cases involve real people and real events. Facts matter,5 so it is both worthwhile and important to note what the record now before the Court does and does not demonstrate.6

Plaintiff Juliet Evancho began to change her appearance and dress to that typically associated with a girl at around age 12 or 13. She began medically supervised hormone treatment at around age 16, and in 2015, at age 17, she publicly began living as a girl. During the 2015-16 school year, Ms. Evancho and her parents met with school officials regarding her gender identity as a girl, and those school officials were fully on board with treating her consistently with that identity. She says that the passage of Resolution 2 and its implementation as to her have caused her serious emotional and other distress, making her feel unsafe, depressed, marginalized and stigmatized by, among other things, the School's requirement that she use only either the boys restrooms or the single-user restrooms at the High School.7 ECF 24-2 at 46-52, 55, 62. Ms. Evancho's photo, which shows that her appearance is completely consistent only with the gender identity that she lives every day, is in the record at ECF 24-2 at ¶ 7.

Plaintiff Elissa Ridenour began to live her life as a girl at age 14, and she likewise began medically supervised hormonal therapy thereafter. In 2012, while in 8th grade, she and her parents met with school officials to advise them that she was living her life in all respects as a girl. The District officials stated that they would engage with her in that fashion. ECF 71-2. Ms. Ridenour is treated by the High School community as a girl, and — at least prior to the passage of Resolution 2 — was fully accepted as a girl. She reports that Resolution 2 had essentially the same impact on her as does Ms. Evancho. ECF 24-3 at ¶¶ 28, 31, 34, 40. Plaintiff Ridenour's photo, which shows that her appearance is consistent only with the gender identity that she lives every day, is in the record at ECF 24-3 at ¶ 8.

Plaintiff A.S. and his parents met with school counselors in 2015 and advised them that he lived as a boy. The school counselors advised him that he would be treated as a boy within the school community, and he was. Beginning in his junior year at the High School, A.S. started using the "boys" restroom with no issues, and he was widely accepted as a boy by the school community. In 2016, he too began receiving medically-directed hormonal treatment, and he has now legally changed his given name to one traditionally used by boys. A.S. also asserts the same sorts of actual harm from the implementation of Resolution 2 as do the other Plaintiffs. ECF 24-4 at ¶¶ 24, 33-35.

The Plaintiffs have submitted the declaration of Dr. Diane Ehrensaft, a developmental and clinical psychologist who has declared that she has considerable educational and professional experience in the area of gender identity matters. ECF 24-5. Dr. Ehrensaft stated that what is reported by the Plaintiffs as to their gender identities, their life experiences, and the scope of the impact of that identity on their daily living is fully consistent with their having exactly the gender identities they say that they have and the way they live in all facets of their lives. The Plaintiffs' own unopposed declarations, and those of their parents, state the depth and consistency with which they live the gender identities they have expressed on the record here. Indeed, there is no record evidence that these Plaintiffs do not actually have the specific gender identities they relate to this Court (and as they related to, and were known by, the District Administration while Resolution 2 was under consideration), nor has the District advanced any arguments to that effect.8

The parties seem to agree that besides Plaintiffs, there are no other openly-known transgender students at the High School at this time. The District does not advance as a factual matter that there are any other students at any level in the District that have advised the District that they are transgender. ECF 73 at 83, 88. Thus, in terms of the real world, the passage of Resolution 2 and its current application would fairly be understood by the Plaintiffs, the District and everyone else paying attention to these matters as relating to these Plaintiffs and their use of common bathrooms. Such would have well been known to the Board and the District Administration as being the case. ECF 23-3 at 4.

As to the High School restroom facilities themselves, the parties agree that the student restrooms at the High School are well-maintained, well-lit, and provide locking doors for the toilets in both the girls and boys restrooms. There are partitions on the urinals in the boys rooms. ECF 23-4 at 40. The photos of the restrooms placed into the record demonstrate all of that to be the case. ECF 41-3. The parties agree that the nearly one dozen single-user restrooms arrayed around the High School are now open to any student at any time, including to any student that has a particularized privacy concern. ECF 38 at 35-39.

Until early 2016, there were no institutional issues with the participation of the Plaintiffs in any facet of daily life at the High School. The District, its educational staff, and apparently their fellow students, treated each of them in the very same way that their own families did — that is, consistently with their gender identities. The record reveals that the Plaintiffs appear to have as their principal goal living and attending school in about as unexceptional a way as is possible. It is not an overstatement to observe that on the record before the Court, there simply were no issues or concerns from the District's perspective as to the Plaintiffs' unlimited participation in all daily activities at school, and the District's faculty, staff and Administration were fully supportive of them. ECF 38 at ¶ 13. 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.9 ECF 38 at ¶¶ 7; ECF 36-5 at ¶ 14.

In early 2016, apparently fueled by an inquiry from a parent of a student at the High School, ECF 38 at ¶ 20, the District's Superintendent addressed the restroom issue with the entire school community for the first time.10 His message was pretty much one of "steady as it goes," ECF 43 at ¶¶ 28, 29; ECF 73 at 9, 78; ECF 23-23, in that the Plaintiffs had been participating, engaged members of the student body, and the District Administration had become aware that the Plaintiffs had been using the school restrooms that conformed with their gender identities for some time. ECF 23-5 at 57; ECF 43 at ¶¶ 17, 18, 19. This was consistent with how the Plaintiffs lived their lives day in and day out and with how the District treated them in every other respect.11

Throughout the summer of 2016, there were a number of discussions about the restroom topic at the District's regular public Board meetings and at publicly-held Board Committee meetings convened specifically as to these matters. One session included a presentation on gender identity by the professional staff at Pittsburgh's Children's Hospital.12 ECF 38 at ¶ 30; ECF 23-15. The debate was highly engaged. The Board sought the advice of its experienced school solicitor as to legal issues related to these matters. Members of the public spoke at the meetings on these topics. Many, but not all, spoke in favor of the position ultimately enacted in what has been denominated School Board Resolution 2. ECF 38 at 24; ECF 36-4 at ¶ 10-11. According to the declarations submitted by the individual Board Members, a (if not the) prevailing concern raised by both those who spoke in favor of Resolution 2 and Board proponents alike was that a student would in essence masquerade as being transgender, and would then use a designated student restroom inconsistent with their assigned sex. This would all occur in an effort to visually examine the sex organs of other restroom users or to engage in some other blatant and malicious invasion of bodily privacy of those simply using the restrooms for their intended purposes. Board members also expressed concern that the partially clothed body of a student of a given assigned sex would be observed in a restroom by a student of the opposite assigned sex. No explanations were provided as to the circumstances of how or when that has, or would, actually happen. ECF 36-4 at ¶ 12; ECF 36-7 at ¶ 16; ECF 36-8 at ¶ 15; ECF 36-9 at ¶ 12; ECF 36-10 at ¶ 14; ECF 36-11 at ¶ 12. And the record of these discussions (including the declarations of Board Members and the parents of other students, as well as the transcripts of portions of the meetings, ECF 23-2 through 23-6), does not reveal that any such episode involving an imposter has ever occurred at the High School or in the District, nor was any reported episode in another school advanced to the Board.13 ECF 23-3 at 4-7; 73 at 81.

At the end of its process,14 the Board in a 5-4 vote passed Resolution 2, reversed how things had been happening for the past several years, and directed, among other things, that students must use either unisex bathrooms or the school bathrooms of their "biological sex." ECF 38 at ¶¶ 16, 17; ECF 39 at ¶ 31; ECF 43 at ¶¶ 30-31. The Board did not then, and to the Court's knowledge has not to date, defined the term "biological sex" by resolution, policy statement or other Board pronouncement (although the principal proponent of Resolution 2 stated he meant "sex assigned at birth"). ECF 23-4 at 6. Resolution 2 by its terms did commit the District to engaging in further study and some sort of undefined policy development and adoption going forward. District counsel advised the Court that to date no Board or District policy exploration, development or adoption activity in such regards has occurred or begun. ECF 73 at 116-120.

At oral argument, the District's counsel advised the Court that "biological sex" for purposes of Resolution 2 means the then-existing presence of a penis (boys) or a vagina (girls). District counsel was not in a position to authoritatively respond when asked by the Court what the biological sex would be, for Resolution 2 purposes, of someone born with indeterminate primary external sex organs. District counsel did note that if, for instance, a boy had lost his penis due to trauma or surgery, he would no longer "be a boy" — even if as a result, he had not acquired a vagina. ECF 73 at 116-118.

As of the passage of Resolution 2,15 the Plaintiffs were required to stop using the common restrooms they had been using, and instead were required to begin using either the single-user facilities that had been opened to all students or the common restrooms matching their assigned sex but not their gender identities. Thus, in sum and substance, in the Pine-Richland School District, the Board has adopted a student bathroom policy that turns exclusively on the then-existing presence of a determinate external sex organ, no matter what other biological sex or gender markers may exist, irrespective of gender identity (even if as in the case of the Plaintiffs, that gender identity is uncontested, and apparently persistent, consistent and medically and psychologically comprehensive), unrelated to how a student leads his or her life in all other respects, and irrespective of the manner in which the District treats that student for all other purposes. ECF 73 at 175-77.

The record does not reveal (1) the analysis by which the Board chose its specific line of demarcation (or even if the Board, acting as a board,16 adopted this specific line of demarcation, or whether that was a position taken by District counsel during oral argument, ECF 73 at 176-77), (2) whether that line of physiological definition was based on medical, psychological, psychiatric, or other similar assessments,17 or (3) how the District would as a practical matter assess the presence of such external anatomy in a disputed case essentially "on the spot," or how it would day to day assess the compliance by the hundreds of students at the High School with that directive. What District counsel did advise the Court was that drawing the line, then and there, was both necessary to enforce, and for the District to act consistently with, longstanding societal definitions of "biological sex," and to protect the privacy interests of students.18 District counsel advised the Court that in enacting Resolution 2, the Board was responding to the desires of a majority of the portion of the District's populace who attended and spoke at School Board meetings for such a change in District operations. ECF 23-3 at 27.

The transcripts of the relevant portions of the Board meetings leading up to the adoption of Resolution 2 do not reflect any findings by the Board (1) that the basis for the enactment and enforcement of Resolution 2 was to address actually occurring or actually threatened situations of student restroom use for impermissible or unlawful purposes by anyone, including students, masquerading as being transgender; or (2) that the Plaintiffs' restroom usage pre-enactment of Resolution 2 in any way actually interfered with the orderly operations of the High School, or imminently threatened to do so.

There is no record evidence that the Board actively discussed or considered any risk of harm to the Plaintiffs after Resolution 2's passage from Plaintiffs' use of common restrooms that conformed to their assigned sexes, but which were wholly contrary to their gender identities. The Board's discussions did reflect that it viewed the High School's single-user restrooms as an alternative available to the Plaintiffs that would fully address their restroom needs.

The parties agree that other than perhaps one report received by the High School principal in October 2015 from a student that "there was a boy" in the girls bathroom (apparently in reference to Plaintiff Evancho), followed by a parent inquiry along the same lines in early 2016, there have been no reports of "incidents" where the use of a common restroom by any one of the Plaintiffs has caused any sort of alarm to any other student, nor of any actual or actually threatened impermissible conduct by or toward any student. There is no record evidence that any Plaintiff ever did, or threatened to do, anything to actually invade the physical or visual privacy of anyone else in the High School.19 There is no record evidence that any student ever had their "partially clothed body" exposed to any student of another assigned sex in a High School restroom, or that such was threatened or attempted. At oral argument, neither party advised the Court of any situation in the District or in a public school in Pennsylvania (or anywhere else) in which a transgender student's use of a public school student restroom matching that student's stated and experienced gender identity, but not their assigned sex, has led to any sort of misconduct or unlawful activity, nor any activity that actually invaded the privacy interests of any other student. And the District appeared to agree that its existing codes of student conduct would proscribe and as necessary punish any student that engaged in such maliciously improper conduct. Certainly the statutory law of Pennsylvania would appear to do so. See 18 Pa. Stat. Ann. § 5901 (open lewdness); § 7507.1 (invasion of privacy); § 3127 (indecent exposure).

When the Court asked District counsel at oral argument to set forth one or more concrete examples of how the Plaintiffs' resumed and then continued use of the restrooms consistent with their gender identities would actually lead to the invasion of concrete privacy interests in light of the factual record summarized above, which would include the potential exposure of a partially clothed student's body to a student of a different assigned sex, District counsel instead described a fundamental societal interest in privacy and an essentially inviolate "zone of privacy" applicable in all cases beginning at the restroom door.20

District counsel then described that privacy interest by calling upon a hypothetical matching a personal experience from his own school days. District counsel recited that while in high school, he competed on the cross-country team. Due to the press of tight school time schedules, he would from time to time change from "school clothes" into cross-country togs while standing in the corner of the restroom at his school (which appears to be another school altogether). ECF 73 at 131, 143. Perhaps that reported anecdotal event can be treated by the Court as being a plausible historical recitation of life events. However, there is no indication that such an event has occurred in the District, and even assuming that it might in the future, there is no record evidence as to the comparable "tightness" of the time schedule at this high school necessitating such actions, and no record evidence of the unavailability of actual locker rooms for use as a locker room (or as to the physical set up of such locker rooms in terms of providing privacy to each locker room user). The District's counsel also advised the Court that some of the older student restrooms in the High School had somewhat lower toilet partitions, which while still occluding any view of the user of the enclosed toilet, could allow a student to grab onto the top of the partition and hoist themselves up in order to peer over the partition at another student. But District counsel also candidly advised the Court that they were aware of no reports of incidents in which such conduct actually occurred. ECF 73 at 80.

The parties agree that for all purposes other than restroom use, the District treats each of the Plaintiffs consistently with their stated and experienced gender identity, and it appears to the Court that it seeks to do so with appropriate sensitivity to their needs and interests and the needs and interests of all students. The parties have advised the Court that each Plaintiff has already completed the required physical education programs, and none participates in interscholastic or intramural athletic endeavors that require the use of the High School's common use locker rooms. The District also vigorously stated at oral argument that it is not its intention, in any way, shape or form, to label the Plaintiffs as having a sex designation other than their stated gender identities, with the single exception being the one at the core of this lawsuit: the use of common restrooms.21 ECF 73 at 12, 112.

All of the Plaintiffs, and the parents of Juliet Evancho and Elissa Ridenour, have stated in their declarations in considerable detail that — particularly in light of the persistent manner in which the Plaintiffs live their lives consistent with their gender identities, and consistent with how the District treats them in all other regards — the enactment and enforcement of Resolution 2 has and will continue to segregate them from their peers by changing the status quo as to their restroom use, and in doing so, will marginalize and stigmatize them based on their actual gender identities. The Plaintiffs in their supplemental declarations advise the Court that during and since the public discussions that led up to the passage of Resolution 2, they have been the subject of several episodes of what they believe to be untoward or harassing conduct by some other students based on their gender identities.22 ECF 71-1; 71-2. This harm is made more acute, Plaintiffs say, by the fact that they had been using the restrooms matching their gender identities for some time without problems, that they are the only transgender students at the High School, and thus, the only students whose use of school facilities has been changed by the enforcement of Resolution 2. This, they say, has inherently made them the focus of that enactment. The District mounts no factual challenge to the Plaintiffs' recitations of harm.

Finally, the Plaintiffs are at a real risk of actual harm in the form of disciplinary action if they use the common restrooms that are consistent with their gender identities. At oral argument, the District's lawyers advised the Court that, if confronted with the continued use by the Plaintiffs of school restrooms that are consistent with their gender identities but inconsistent with their assigned sex, the Plaintiffs will be subject to application of the District's student disciplinary policy, up to and including suspension from school. The Court would also note, however, that the District Administration seems to be in no hurry to so harshly punish the Plaintiffs, and appears instead to have focused on enforcement practices based principally on consultation and counseling with the Plaintiffs and the Plaintiffs' parents. ECF 70-1; ECF 73 at 93, 102.

* * *

Having reviewed the extensive record summarized above, and for the reasons that follow, the Court concludes that the Plaintiffs have made a persuasive case that there is a reasonable likelihood that they will demonstrate (1) that the reasons and rationales stated by the District for the enforcement of Resolution 2 do not support its application to school bathroom use by these three Plaintiffs when applying the standards that now exist under prevailing law. Therefore they have a reasonable likelihood of success on the merits of their Equal Protection claim (but not their Title IX claim); (2) that they have suffered and will continue to suffer immediate and irreparable harm; (3) that the balance of equities falls in their favor; and (4) that the public interest will be served by the grant of limited preliminary injunctive relief in their favor. The District's Motion to Dismiss both of the Plaintiffs' claims will be denied without prejudice,23 and the Plaintiffs' Motion for the entry of a preliminary injunction will be granted in part, to the extent that the status quo pre-Resolution 2 will be restored as to the use of common restrooms by these Plaintiffs. The Defendants will be preliminarily enjoined from prohibiting these Plaintiffs from using the common restrooms they were using immediately prior to the enactment of Resolution 2 — that is to say, the common restrooms consistent with their gender identities.24 The Defendants will be further directed to at least maintain the manner in which they interacted with the Plaintiffs regarding their gender identities prior to the passage of that Resolution.25

II.

The parties agree on the applicable legal standard for the grant or denial of preliminary injunctive relief. To prevail, the Plaintiffs must demonstrate that "(A) they are likely to succeed on the merits of their claims, (B) they are likely to suffer irreparable harm without relief, (C) the balance of harms favors them, and (D) relief is in the public interest." Issa v. Sch. Dist. of Lancaster, 847 F.3d 121, 131 (3d Cir. 2017). In evaluating whether the party seeking an injunction is likely to succeed on the merits, courts do "not require that the right to a final decision after trial be `wholly without doubt'; the movant need only show a `reasonable probability' of success." Id.; see also See Winter v. Nat. Res. Def Council, 555 U.S. 7, 21, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); ADP, LLC v. Jordan Lynch, No. 16-3617, 678 Fed.Appx. 77, 80, 2017 WL 496089, at *2 (3d Cir. Feb. 7, 2017). "A preliminary injunction is an extraordinary remedy never awarded as of right." Winter, 555 U.S. at 24, 129 S.Ct. 365. "In each case, courts `must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.'" Id. And "[i]n exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Id.

The core issue before the Court is whether there is a reasonable likelihood of success for the Plaintiffs on either or both of their federal claims — that the enforcement of Resolution 2 violates the Plaintiffs' rights as secured by the Equal Protection Clause of the Fourteenth Amendment or by Title IX. For the reasons that follow, the Court concludes that the Plaintiffs have made that showing as to their Equal Protection claim, but they cannot at this juncture do so as to their Title IX claim.

III.

The Court will begin by addressing the Plaintiffs' likelihood of success on the merits of their Equal Protection claim.26

The Fourteenth Amendment Equal Protection Clause provides that no State may "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. This broad principle, however, "must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). As a result, the Supreme Court has "attempted to reconcile the principle with reality" by prescribing different levels of scrutiny depending on whether a law "targets a suspect class." Id. Laws that do not target a suspect class are subject to rational basis review, and courts should "uphold the legislative classification so long as it bears a rational relation to some legitimate end." Id. By contrast, laws that target a suspect class are subject to heightened scrutiny. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989).

The Equal Protection Clause is fully applicable to this public school district established and maintained under the laws of the Commonwealth of Pennsylvania. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 258, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009); see West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 637, 63 S.Ct. 1178, 87 S.Ct. 1628 (1943) (Fourteenth Amendment applies to local boards of education). The Defendants and the Board of School Directors are state actors for such purposes, and none contends otherwise.27 Where the state by its conduct intentionally treats one person differently from another, or one group of people differently from another group, when they are similarly-situated in all other material respects, the governmental classification must be justified by a standard related to its nature.

As a preliminary matter, the Court concludes that on the record now before it, the Plaintiffs have shown that the District is treating them differently from other students who are similarly situated on the basis of their transgender status. See Kazar v. Slippery Rock Univ. of Pa., No. 16-2161, 679 Fed.Appx. 156, 162, 2017 WL 587984, at *5 (3d Cir. Feb. 14, 2017). The Plaintiffs are being distinguished by governmental action from those whose gender identities are congruent with their assigned sex. The Plaintiffs are the only students who are not allowed to use the common restrooms consistent with their gender identities.28 Plaintiffs Evancho and Ridenour fully identify as girls and are identified by others as girls. Plaintiff A.S. fully identifies as a boy and is identified by others as a boy. That is how they live, and have lived, their lives in all regards, and they are otherwise treated as such. The District conceded at argument that in terms of the use of common student restrooms, Plaintiffs Evancho and Ridenour would be required to use the restroom labeled "boys," Plaintiff A.S. would be required to use the restroom labeled "girls," and they and everyone else using those restrooms would have the assigned sex that matches the sign on the door. But unlike every other student, the Plaintiffs would have to use restrooms where they are wholly unlike everyone else in appearance, manner, mode of living, and treatment at school. Resolution 2 therefore discriminates29 based on transgender status. Just as other courts have recently concluded, for these analytical purposes, that discrimination based on transgender status in these circumstances is essentially the epitome of discrimination based on gender nonconformity, making differentiation based on transgender status akin to discrimination based on sex for these purposes.30 Glenn v. Brumby, 663 F.3d 1312, 1316-17 (11th Cir. 2011); Bd. of Educ. of Highland S.D. v. U. S. Dept. of Educ., No. 16-524, 208 F.Supp.3d 850, 872-75, 2016 WL 5372349, at *15-17 (S.D. Ohio Sept. 26, 2016), stay denied pending appeal, Dodds v. U.S. Dept. of Educ., 845 F.3d 217 (6th Cir. 2016) ("Highland"); Carcano v. McCrory, No. 16-cv-236, 203 F.Supp.3d 615, 640, 2016 WL 4508192, *17 (M.D. N.C. Aug. 26, 2016).

Given that the classification at hand is the Plaintiffs' transgender status, the parties dispute which Equal Protection standard should apply. The District says that the lowest Equal Protection bar applies, that is the rational basis test. Under that test, the government classification passes muster so long as there is some rational basis for it. The rationale need not be one actually relied on by the governmental actor, and it need not have been thought of or articulated at the time. It is sufficient, say the Defendants, if a reviewing court can think of any rational basis supporting the challenged governmental action. See Natl. Assoc. for the Advancement of Multijurisdiction Practice v. Simandle, 658 Fed.Appx. 127, 136-37 (3d Cir. 2016) (citing FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)).31

The District cites two reasons in support of its position that the Court should apply rational basis review. The first is that neither the Supreme Court nor our Court of Appeals has specifically weighed in as to the applicable Equal Protection standard as to classifications based on transgender status. While that may be true, the existence of that decisional vacuum is not enough to resolve the question. First, that means that applying an Equal Protection standard other than rational basis in such a setting is not contrary to settled law, and second, when an issue is fairly and squarely presented to a District Court, that Court must address it. Dodging the question is not an option.

The second reason advanced by the District is that in Johnston v. University of Pittsburgh, 97 F.Supp.3d 657 (W.D. Pa. 2015), another member of this Court ruled that the rational basis standard applies to distinctions based on transgender status. Johnston is of course informative to other members of the Court, but as the parties are well aware, it is not controlling. Camreta v. Greene, 563 U.S. 692, 709, n.7, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011); Wright v. SunTrust Bank, Inc., 642 Fed. Appx. 144, 147 (3d Cir. 2016). Johnston also acutely recognized that cases involving transgender status implicate a fast-changing and rapidly-evolving set of issues that must be considered in their own factual contexts. ECF 38 at ¶ 28, 29. To be sure, Johnston's prognostication of that reality was profoundly accurate.32 Johnston, 97 F.Supp.3d at 668. As is noted at various points below, there are number of fundamental factual and legal differences between this case and Johnston. This case involves the issue of what deference is to be given to administrative interpretations of applicable regulations and Johnston did not. And as to the Equal Protection claims in each case, the record in Johnston as to the plaintiffs transgender status and defendant's recognition of it was different than in this case, as was the breadth of the issues before that court. The long and the short of it is that this is a different case than Johnston for a number of material reasons.

The Plaintiffs in turn approach this issue with a double-barreled argument. First, they say that in light of the factual record set out above, there simply is no rational basis for the enactment and enforcement of Resolution 2 — at least not as it relates to the use of the High School's restrooms by the Plaintiffs. They contend that there has been no rational basis that can be identified that would insulate Resolution 2 from an Equal Protection challenge, and that in any event the rational basis test, applied in its most accommodating iteration, still requires something, and what there is here is a desire to change the school restrooms that the Plaintiffs had been using without any factual basis to conclude that doing so is necessary or even advisable.

Beyond that, the Plaintiffs contend that the rational basis test is not the test to be applied to the classification enacted by Resolution 2. They say that a heightened standard, known as "intermediate scrutiny," which is applied to classifications based on sex, should apply here. When intermediate scrutiny is applied, "[p]arties who seek to defend gender-based government action must demonstrate an `exceedingly persuasive justification' for that action." United States v. Virginia, 518 U.S. 515, 531, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). "The burden of justification is demanding and it rests entirely on the State." Id. at 533, 116 S.Ct. 2264. The State must demonstrate that the challenged law serves "`important governmental objectives and that the discriminatory means employed' are `substantially related to the achievement of those objectives.'" Id. Furthermore, "the justification must be genuine, not hypothesized or invented post hoc in response to litigation." Id. Finally, the justification "must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." Id. In short, intermediate scrutiny requires that differential treatment be supported by an exceedingly persuasive reason, advance an important governmental interest and have a direct relationship to the important governmental interest furthered by it. See id. at 531-33, 116 S.Ct. 2264.

The Supreme Court uses the following four factors to determine whether a "new" classification requires heightened scrutiny: (1) whether the class has been historically "subjected to discrimination," Lyng v. Castillo, 477 U.S. 635, 638, 106 S.Ct. 2727, 91 L.Ed.2d 527 (1986); (2) whether the class has a defining characteristic that "frequently bears no relation to ability to perform or contribute to society," City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); (3) whether the class exhibits "obvious, immutable, or distinguishing characteristics that define them as a discrete group," Lyng, 477 U.S. at 638, 106 S.Ct. 2727; and (4) whether the class is "a minority or politically powerless." Id.

Against that backdrop, the Court concludes that an intermediate standard of Equal Protection review applies in this case. The record before the Court reflects that transgender people as a class have historically been subject to discrimination or differentiation; that they have a defining characteristic that frequently bears no relation to an ability to perform or contribute to society; that as a class they exhibit immutable or distinguishing characteristics that define them as a discrete group; and that as a class, they are a minority with relatively little political power. ECF 23-12; see Adkins v. City of New York, 143 F.Supp.3d 134, 138-41 (S.D.N.Y. 2015). Indeed, the documentary record advanced by the Plaintiffs, and not contested by the District, reveals that, as a class of people, transgender individuals make up a small (according to all parties, less than 1%) proportion of the American population. Highland, 208 F.Supp.3d at 874, 2016 WL 5372349, at *16. As to these Plaintiffs, their transgender characteristics are inherent in who they are as people, which is not factually contested by the District. As to these Plaintiffs, and more generally as to transgender individuals as a class, that characteristic bears no relationship to their ability to contribute to our society. More precisely, the record reveals that the Plaintiffs are in all respects productive, engaged, contributing members of the student body at the High School. Thus, all of the indicia for the application of the heightened intermediate scrutiny standard are present here. See Carcano, 203 F.Supp.3d at 640, 2016 WL 4508192, at *17; Highland, 208 F.Supp.3d at 874, 2016 WL 5372349, at *16-17.33

Moreover, as to these Plaintiffs, gender identity is entirely akin to "sex" as that term has been customarily used in the Equal Protection analysis. It is deeply ingrained and inherent in their very beings. Like "sex," as to these Plaintiffs, gender identity is neither transitory nor temporary. Further, what buttresses that conclusion is the fact that the school community as a whole treats these Plaintiffs in all other regards consistently with their stated gender identities, along with the reality that these Plaintiffs live all facets of their lives in a fashion consistent with their stated and experienced gender identities. These are all factors that have informed the judgments of other courts in applying the intermediate scrutiny Equal Protection analysis in the case of classifications involving transgender status, and in this Court's estimation, they apply here. See Glenn, 663 F.3d 1312; Highland, 208 F.Supp.3d 850, 2016 WL 5372349; Carcano, 203 F.Supp.3d 615, 2016 WL 4508192; Adkins, 143 F.Supp.3d 134; see also Heckler v. Mathews, 465 U.S. 728, 744, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984).

When measured against the legal standard for meeting the intermediate scrutiny test, the Court concludes that the Plaintiffs have a reasonable likelihood of success on the merits of their claim that the District has not demonstrated that applying Resolution 2 to Plaintiffs' restroom use actually furthers an important governmental interest.34 Specifically, what is missing from the record here are facts that demonstrate the "exceedingly persuasive justification" for the enforcement of Resolution 2 as to restroom use by these Plaintiffs that is substantially related to an important governmental interest. An examination of the record before the Court demonstrates why that is the case.

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. Any arguable disruption to the daily activities of the District that is the result of the passage of Resolution 2 (or the discussions leading up to or resulting from it) would not be attributable to the Plaintiffs, and there is no record evidence of such.35 Nor would the application of Resolution 2 appear to be necessary to address any such threat or disturbance by anyone else in the High School restrooms, as there is no record evidence of that, either.

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. The Court readily recognizes that the law acknowledges the existence of a generalized privacy interest and that the District has an obligation to protect the legitimate privacy interests of all students. Certainly the Doe decision referenced by the District recognizes that such an important privacy interest exists. See Doe, 660 F.3d at 176-77. But according to Doe, recognizing that interest's existence does not end the inquiry, since that interest, like any stated governmental interest, must be considered in the context of the "facts on the ground," not only as a broadly stated goal, and Doe specifically rejected the application of any "bright line" test. See id. Unlike the situation in Doe, the facts in this case do not establish any threatened or actually occurring violations of personal privacy.36 Although the record reveals some specific concerns driven by the reputed presence (and presence alone) of a Plaintiff in a restroom matching her gender identity, there is no record evidence that this actually imperiled or risked imperiling any privacy interest of any person. And as noted above, given the actual physical layout of the student restrooms at the High School, it would appear to the Court that anyone using the toilets or urinals at the High School is afforded actual physical privacy from others viewing their external sex organs and excretory functions. Conversely, others in the restrooms are shielded from such views.37

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 Tom" activity by anyone pretending to be transgender.38 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 out-break 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.39

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. Even if pressed by such theoretical possibilities, it would appear to the Court that the dozen or so single-user restrooms sprinkled around the High School would easily fit the bill for private changing. There is also no record evidence that any student uses, has used, or will use any common restroom outside of its structurally privacy-protected areas in any state of undress or for "excretory functions," which the District advised was the focus of Resolution 2.

In light of where the factual record leads, the Court must next examine the express rationales set forth by the District for applying Resolution 2 to the Plaintiffs' restroom use.

First, the declarations of the Board members recite that some of them had received word that several parents had, and others would, move their children to other schools if the Board did not enact a policy akin to Resolution 2. The District has submitted supporting declarations from several such parents confirming their actions or intentions in such regards. ECF 38 at ¶ 25, 36-13, 36-15. Additionally, the record reflects that there were members of the community who attended one or more Board meetings and voiced support for Resolution 2. ECF 73 at 102. The Court is certainly in no position to conclude that a school board should be inattentive to the expressed educational preferences of parents and students — they plainly should consider such matters in doing their important work as school directors. But that does not resolve the question, because like the Court, those same school directors have sworn fealty to the Constitution and laws of the United States and the Commonwealth of Pennsylvania. 24 Pa. Stat. Ann. § 3-321, § 10-1004. If adopting and implementing a school policy or practice based on those individual determinations or preferences of parents — no matter how sincerely held — runs counter to the legal obligations of the District, then the District's and the Board's legal obligations must prevail. Those obligations to the law take precedence over responding to constituent desires.40 The Equal Protection Clause of the Fourteenth Amendment is neither applied nor construed by popular vote. Barnette, 319 U.S. at 638-42, 63 S.Ct. 1178; see Obergefell v. Hodges, ___ U.S. ___, 135 S.Ct. 2584, 2605-06, 192 L.Ed.2d 609 (2015).

Second, the District argues that the passage of Resolution 2 was the first "policy" of the District as to the use of student restrooms by transgender students, perhaps intimating that there was never a "status quo" to the contrary.41 Though it appears that there was no written or School-Board-adopted policy as to restroom use by transgender students (or anyone else), that does not resolve the matter either. As a matter of custom and practice, these students have been treated consistently with their gender identities in all respects, and prior to the enactment of Resolution 2 that included their using the restrooms consistent with their gender identities for several years. ECF 23-5 at 55. Federal law, particularly in the constitutional arena, has long recognized that a persistently-applied custom or practice of a governmental actor is accorded the same legal heft as a formal, voted-upon, "written in the policy manual" directive. The record here certainly reveals such a consistent practice with respect to the Plaintiffs prior to the passage of Resolution 2. See Estate of Martin v. U.S. Marshals Serv. Agents, 649 Fed.Appx. 239, 245-46 (3d Cir. 2016).

Third, the District's counsel advised the Court that Resolution 2 was intended to place into concrete District policy certain societal norms and expectations about privacy as to bathroom use. ECF 73 at 86. In so doing, they say that the Board was responding to the desires of the public that elected them. ECF 73 at 102. Given the analytical construct directed by our Court of Appeals in Doe, however, the fact that such interests exist generally, or are longstanding, does not advance the analysis necessary here. There is insufficient record evidence that the steps already in place at the time of Resolution 2's adoption did not adequately and reasonably address them, or that there were any actual or actually threatened risks to any such privacy interests by the actions of these Plaintiffs.

Fourth, the District asserts that there should not be an issue here because any student may use the single-user restrooms sprinkled around the High School. The District has proposed that those single-user bathrooms therefore provide a "safety valve" of sorts for the Plaintiffs if they do not feel comfortable using the common bathrooms matching their assigned sexes, but inconsistent with everything else about them. The Plaintiffs, on the other hand, contend that those single-user restrooms also provide a "safety valve" for any other students who may have especially heightened privacy concerns for whatever reason. Given that settled precedent provides that impermissible distinctions by official edict cause tangible Constitutional harm, Hassan v. City of New York, 804 F.3d 277, 289-92 (3d Cir. 2015), 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.

This all leads to the conclusion that under the intermediate scrutiny standard, the Plaintiffs have established a reasonable likelihood of success on their Equal Protection claim. That is because on the facts now present in the record, the District has not demonstrated that there is an exceedingly persuasive justification for applying Resolution 2 to common restroom use by the Plaintiffs that is substantially related to an important government interest, since there is insufficient record evidence of any actual threat to any legitimate privacy interests of any student by the Plaintiffs' use of such restrooms consistent with their gender identity, or that the set-up of the High School restrooms fails to fully protect the privacy interests of any and every student.42

Next, the Court must consider whether Plaintiffs have shown that they are likely to suffer irreparable harm absent injunctive relief43 and whether the balance of harms tips in their favor. As discussed at length above, the Plaintiffs have set forth — in considerable detail and without factual contradiction by the District — the actual, immediate and irreparable harm that they are experiencing. Courts have long recognized that disparate treatment itself stigmatizes members of a disfavored group as innately inferior, Heckler, 465 U.S. at 739, 104 S.Ct. 1387, and raises the "inevitable inference" of animosity toward those impacted by the involved classification. Romer, 517 U.S. at 621, 116 S.Ct. 1620. Given that the Plaintiffs had been using the restrooms consistent with their gender identities for several years without incident, and are now by formal District directive the discrete group barred from doing so, it is not a long leap, nor really a leap at all, to give credence to the Plaintiffs' assertions that they subjectively feel marginalized, and objectively are being marginalized, which is causing them genuine distress, anxiety, discomfort and humiliation. ECF 73 at 173-74. This Court is in no position to downplay or minimize the nature or consequence of such harm or the likelihood that Plaintiffs will prove it. Its relatively unquantifiable nature makes the Plaintiffs' harm no less real.44 In fact, that Plaintiffs' harm is intangible and therefore cannot later be readily remedied by monetary relief is what makes it "irreparable" for these purposes, and is what makes a preliminary injunction appropriate in this case.

On the other hand, it would appear that the grant of relief ordered by the Court here would cause relatively little "harm" in the preliminary injunction sense — if any harm at all — to the District and the High School community. The record reveals that there were no problems with the Plaintiffs' restroom use prior to the Board actions that led to the passage of Resolution 2. Moreover, the record shows that the physical layout of the bathrooms at the High School appears to fully protect any legitimate privacy interests of both the Plaintiffs and all other bathroom users. And it would appear that the state of affairs advanced by applying Resolution 2 to the Plaintiffs could actually risk further harm to their interests without benefitting the District or anyone else.

Finally, in light of the Constitutional import of the commands of the Equal Protection Clause, and in light of the minimal burdens that would flow from requiring the District to return to the mode of bathroom operations as to the Plaintiffs that existed prior to the passage of Resolution 2, which is the status quo ante, the public interest is furthered by the grant of a preliminary injunction in this case. Accordingly, the Plaintiffs' Motion for a Preliminary Injunction will be granted on the Plaintiffs' Equal Protection claim. See Dodds v. U.S. Dept. of Educ., 845 F.3d 217, 222 (6th Cir. 2016) (explaining that injunctive relief to protect constitutional rights is by definition in the public interest).

IV.

The Court must also address the Plaintiffs' likelihood of success on the merits of their Title IX claim. Assessing the likelihood of Plaintiffs' success on that claim is much more complex as a legal matter, and as noted above, the Court concludes that Plaintiffs are not currently entitled to preliminary injunctive relief as to it.

Title IX proscribes discrimination based on sex in the provision of educational programs funded by or with the assistance of the federal government. 20 U.S.C. § 1681(a). To establish a prima facie case of discrimination under Title IX, a plaintiff must allege (1) that he or she was subjected to discrimination in an educational program, (2) that the program receives federal assistance, and (3) that the discrimination was on the basis of sex. See Bougher v. Univ. of Pittsburgh, 713 F.Supp. 139, 143-44 (W.D. Pa. 1989) aff'd, 882 F.2d 74 (3d Cir. 1989). No party appears to contest that Title IX applies to the District and its decisions about its educational programs. ECF 43 at ¶ 3 (as to conclusions of law). As other courts have concluded, the use by students of school restrooms is part and parcel of the provision of educational services covered by Title IX, and neither party takes issue with that. Highland, 208 F.Supp.3d at 865, 2016 WL 5372349, at *10.

The Plaintiffs argue that Title IX's prohibition of discrimination based on sex includes discrimination based on transgender status. They point to the fact that the federal Departments of Education ("DOE") and of Justice ("DOJ") have for several years taken the position in Departmental Opinion letters and other communications that discrimination based on "sex" for Title IX purposes includes differentiation based on transgender status, and that differentiations that treat a student contrary to the sex that aligns with his or her gender identity is discrimination based on sex and is prohibited by Title IX.45 Carcano, 203 F.Supp.3d at 633, 2016 WL 4508192, at *11 (referencing a 2013 DOE statement to that effect); see ECF 23-18 at 7-8 (Oct. 26, 2010 communication from DOE Asst. Sec'y. for Civil Rights); ECF 23-19 at 5 (Apr. 29, 2014 communication from DOE Asst. Sec'y for Civil Rights), ECF 23-20 at 25 (Dec. 1, 2014 communication from DOE Asst. Sec'y for Civil Rights); see also ECF 23-21 (Dec. 15, 2014 communication from Atty. Gen.) (application of parallel provisions of Title VII to transgender status and gender identity).46

The Defendants on the other hand contend that Title IX's definition of "sex" does not go beyond a binary definition as between men and women, and that Title IX does not reach any differentiation based on gender identity or transgender status. They rely on both the decision in Johnston and the Supreme Court's stay in the G.G. litigation, G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016), stay and recall of mandate granted, ___ U.S. ___, 136 S.Ct. 2442, 195 L.Ed.2d 888 (2016), cert. granted in part, ___ U.S. ___, 137 S.Ct. 369, 196 L.Ed.2d 283 (2016), for those propositions. The Defendants also appear to contend that any broader construction of Title IX would go beyond the intention of Congress at the time of its enactment.47

As to the interpretation of Title IX, its prohibition of discrimination based on sex is generally viewed as being parallel to the similar proscriptions contained in Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of "sex" in the employment context. These statutes' prohibitions on sex discrimination are analogous. See, e.g., Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 617, n. 1, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (Thomas, J. dissenting) ("This Court has also looked to its Title VII interpretations of discrimination in illuminating Title IX.") (collecting cases); see also Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 651, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (applying Title VII principles in a Title IX action); G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 718 (4th Cir. 2016) ("We look to case law interpreting Title VII of the Civil Rights Act of 1964 for guidance in evaluating a claim brought under Title IX."), cert. granted in part, ___ U.S. ___, 137 S.Ct. 369, 196 L.Ed.2d 283 (2016). In many ways, Title IX's antidiscrimination provisions are written more broadly than those of Title VII. See Jackson, 544 U.S. at 175-76, 125 S.Ct. 1497 ("Title IX is a broadly written general prohibition on discrimination, followed by specific, narrow exceptions to that broad prohibition. By contrast, Title VII spells out in greater detail the conduct that constitutes discrimination in violation of that statute.").

Courts have long interpreted "sex" for Title VII purposes to go beyond assigned sex as defined by the respective presence of male or female genitalia. For instance, numerous courts have held that Title VII's prohibition of discrimination on the basis of "sex" includes discrimination on the basis of among other things transgender status, gender nonconformity, sex stereotyping, and sexual orientation. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (Title VII proscribes male-on-male sexual harassment); Betz, 659 Fed.Appx. 137 (Title VII and gender stereotyping); Chavez v. Credit Nation Auto Sales, LLC, 641 Fed.Appx. 883 (11th Cir. 2016) (sex discrimination includes discrimination against a transgender person based on gender nonconformity); Glenn v. Brumby, 663 F.3d 1312 (Title VII and transgender status); Prowel, 579 F.3d 285 (Title VII and gender stereotyping); Kastl v. Maricopa Cty. Cmty. Coll. Dist., 325 Fed.Appx. 492 (9th Cir. 2009) (Title VII proscribes discrimination against transgender person based on gender nonconformity); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004) (Title VII and gender nonconformity); Bibby v. Phila. Coca-Cola Bottling Co., 260 F.3d 257 (same); Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) (transgender status); Valentine Ge v. Dun & Bradstreet, Inc., 2017 WL 347582 (M.D. Fla. Jan. 24, 2017) (Title VII covers sex discrimination against a transgender person for gender nonconformity); EEOC v. Scott, No. 16-225, 217 F.Supp.3d 834, 2016 WL 6569233 (W.D. Pa. Nov. 4, 2016) (sexual orientation under Title VII); Roberts v. Clark Cty. Sch. Dist., 2016 WL 5843046 (D. Nev. 2016) (Title VII and transgender status); Fabian v. Hosp. of Cent. Conn., 172 F.Supp.3d 509 (D. Conn. 2016) (same); E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F.Supp.3d 594 (E.D. Mich. 2015) (Title VII applies to discrimination claims of transgender people based on alleged gender nonconformity); Finkle v. Howard Cty., Md., 12 F.Supp.3d 780 (D. Md. 2014) (Title VII and transgender status); Lopez v. River Oaks Imaging & Diagnostic Grp., Inc., 542 F.Supp.2d 653 (S.D. Tex. 2008) (Title VII applies to sex stereotyping claim of transgender plaintiff); Schroer v. Billington, 577 F.Supp.2d 293 (D.D.C. 2008) (Title VII and failure to conform to sex stereotype); Mitchell v. Axcan Scandipharm, No. 05-243, 2006 WL 456173 (W.D. Pa. Feb. 17, 2006) (Title VII and failure to conform to gender stereotype by a transgender person); but see Eure v. Sage Corp., 61 F.Supp.3d 651 (W.D. Tex. 2014) (neither Supreme court nor Fifth Circuit caselaw have held discrimination based on transgender status per se unlawful under Title VII); Etsitty v. Utah Trans. Auth., 502 F.3d 1215 (10th Cir. 2007) (Title VII does not address transgender discrimination); Johnston, 97 F.Supp.3d 657 (same and collecting prior contrary authority).

In light of the most recent, broader readings of the term "sex" both in the context of Title IX claims, Whitaker v. Kenosha Unified Sch. Dist. No. 1, No. 16-943, 2016 WL 5239829 (E. D. Wisc. September 22, 2016); Highland; Carcano; see also Corral v. UNO Charter Sch. Network, Inc., 2013 WL 1855824, at *5 (N.D. Ill. May 1, 2013); K.S. b/n/f Neonda Necole Thomas v. Nw. Indep. Sch. Dist., 2015 WL 9319982 (E.D. Tex. Dec. 23, 2015), and as noted above by courts considering that term in relation to the corollary anti-discrimination provisions of Title VII, the Court concludes that the Plaintiffs have demonstrated a reasonable likelihood of showing that Title IX's prohibition of sex discrimination includes discrimination as to transgender individuals based on their transgender status and gender identity. But that is not the end of the inquiry in this case, and here's why.

By formal regulation, the Department of Education has stated that segregating school restroom and locker room/shower room facilities based on "sex" is not prohibited by Title IX so long as those facilities are fundamentally equal. 34 C.F.R. § 106.33 ("Regulation"). Facially, giving the term "sex" in both Title IX and the Regulation the same scope and meaning as the law requires, it would appear that the Regulation permits discrimination or differentiation on the basis of "sex" so long as it is in the context of the use of substantially equitable school bathrooms, showers and locker rooms. See Si Min Cen v. Atty. Gen., 825 F.3d 177, 193 (3d Cir. 2016) (citing Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007)) (the same meaning is "normally" given to identical words in the same statute). Thus, one fair reading of the Regulation is that any "sex" discrimination otherwise made unlawful by Title IX, including as to transgender status or gender identity (assuming that such are swept into the coverage of Title IX), is nonetheless not unlawful if it is limited to the circumstances specifically considered by the Regulation. But even that conclusion is not as clear as it might seem.

Prior to their 2017 Guidance, the DOE and DOJ had jointly issued two letters interpreting the Regulation, one in 2015 and one in 2016. Those letters advised school districts that prohibiting transgender students from using school restrooms that aligned with their gender identities amounted to unlawful sex discrimination under Title IX and was not shielded by the "safe harbor" provisions of the Regulation. ECF 23-17 (Jan. 7, 2015 communication from DOE Acting Dep. Asst. Sec'y. for Policy) ("2015 Guidance"); ECF 23-8 (May 13, 2016 "Dear Colleague" Letter) ("2016 Guidance"). Then, DOJ and DOE issued the 2017 Guidance withdrawing the 2015 and 2016 Guidance documents and stating that those federal agencies would no longer rely on the positions stated in them. Of note, the 2017 Guidance did not propound any "new" or different interpretation of Title IX or the Regulation, nor did the 2017 Guidance affirmatively contradict the 2015 and 2016 Guidance documents. It instead appears to have generated an interpretive vacuum pending further consideration by those federal agencies of the legal issues involved in such matters. See February 22, 2017 "Dear Colleague" Letter, available at https://www2.ed.gov/about/offices/list/ocr/lgbt.html.

This set of circumstances substantially complicates the issues here. In general, when an agency interprets its own regulation, that agency's interpretation is entitled to some level of deference under Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). But here, the DOJ and DOE had put forth two consistent interpretations of the Regulations in 2015 and 2016, and they have now retracted those interpretations without replacing them via the 2017 Guidance. In light of that retraction, the Court cannot avoid considering which — if any — of the DOJ and DOE's Departmental Guidance documents and other communications related to Title IX and its application to transgender individuals would now be entitled to any sort of Auer deference.

In the Court's estimation, the answer to that deference question would depend in large part on the effect of the 2017 Guidance on the DOE/DOJ's prior interpretations. On one hand, the 2017 Guidance could be read as a simple rescission of the prior DOE/DOJ's 2015 and 2016 Guidance interpretations, which would mean there is now simply no relevant DOE/DOJ interpretation of the Regulation, and therefore nothing to consider deferring to. On the other hand, as a legal matter, the 2017 Guidance could itself be read as a new interpretation of the Regulation by its obviating the prior interpretations of those Departments. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) ("[A]n agency's interpretation of a statute or regulation that conflicts with a prior interpretation is `entitled to considerably less deference' than a consistently held agency view.").

Those issues are made even more uncertain by the reality that the 2015 and 2016 Guidance documents were issued in the thick of the trial court and appellate litigation of G.G., as was the issuance of the 2017 Guidance, which also impacts the course of the litigation in Texas v. United States, 201 F.Supp.3d 810, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016). In that case, Texas and some other states sought and were granted an injunction stopping DOE enforcement proceedings based on the 2016 Guidance. While an appeal to the Fifth Circuit is now pending in that case, the United States very recently moved to withdraw its motion for a stay at the Court of Appeals pending that appeal. State of Texas v. United States, 16-11534, Order, 679 Fed.Appx. 320, 2017 WL 543266 (5th Cir. Feb. 10, 2017).

Auer deference to a federal agency's interpretation of its own regulation, such as the Regulation, is often inappropriate when the interpretation was issued essentially in furtherance of a litigation position. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). From this Court's perspective, it would appear likely that both the 2015 and 2016 Guidance letters would fall (or would have fallen) within that rule given their issuance directly relative to the G.G. litigation. And given the timing of the issuance of the 2017 Guidance relative to the G.G. appeal, it would appear to be a virtually inescapable conclusion that its issuance coupled with its swift transmittal to the Supreme Court relative to the appeal in G.G. was intended by the United States to affect the arc of the disposition of that appeal.48 Thus in any event it would appear that giving Auer deference to any of those interpretations would be and would have been an uncertain proposition at best.

On top of all of that is the reality that the 2015 and 2016 Guidance letters were central to the Title IX holdings by the Highland and Carcano courts, and the interrelationship between the language of Title IX and the Regulation as addressed in the 2015 and 2016 Guidance letters was at the heart of the Fourth Circuit's decision in G.G, 822 F.3d at 723-25. That the term "sex" should be uniformly construed throughout and as between Title IX and the Regulation was not disputed in G.G., 822 F.3d at 723. But a central point of disagreement between the majority and Judge Neimeyer in his dissent in G.G. was that while the term "sex" as used in both Title IX and the Regulation had to be given the same meaning in both provisions, if that were the case, the Regulation would appear to permit exactly the type of differentiation as to school bathroom/shower room/locker room use that had occurred in G.G. But then, the 2015 and 2016 Guidance letters had nonetheless stated this was unlawful under Title IX. It was that position to which the G.G. majority deferred. Id. at 723-24.

In light of all of that, what makes the current legal landscape even more unsettled is that the Supreme Court is currently poised to grapple with these very issues in G.G. Recall that in G.G., a transgender student seeking to use the school restroom at his high school consistent with his gender identity had sued his local school board under Title IX. The district court initially denied a preliminary injunction that would have permitted him to use the restroom that was consistent with his gender identity. The Fourth Circuit reversed and remanded the case to the district court, which then entered the preliminary injunction. See G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 132 F.Supp.3d 736, 738 (E.D. Va. 2015), rev'd in part, vacated in part, 822 F.3d 709 (4th Cir. 2016), cert. granted in part, ___ U.S. ___, 137 S.Ct. 369, 196 L.Ed.2d 283 (2016); G.G. v. Gloucester Cty. Sch. Bd., No. 4:15CV54, 2016 WL 3581852, at *1 (E.D. Va. June 23, 2016).

In August 2016, the Supreme Court granted a stay of the Fourth Circuit's decision in G.G., granted the G.G. petitioner's motion for recall of the Fourth Circuit's mandate, ___ U.S. ___, 136 S.Ct. 2442, 195 L.Ed.2d 888 (2016), and then subsequently granted certiorari on two of the three questions presented. ___ U.S. ___, 137 S.Ct. 369, 196 L.Ed.2d 283 (2016). Those questions are:

See 137 S.Ct. 369. As noted above, the Deputy Solicitor General formally advised the Supreme Court of the release of the 2017 Guidance. As of the issuance of this Opinion, that Guidance has been circulated to the Justices for their consideration, and the Supreme Court has asked for additional briefing from the parties in G.G. specifically addressing how they contend the disposition of the appeal should proceed in light of the 2017 Guidance. See G.G., No. 16-273, Feb. 23, 2017 Order, available at https://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-273.htm.

So where does this leave matters in this case? The 2017 Guidance, its impact on the rationales set forth in the 2015 and 2016 Guidance letters, the deference due any of them or other non-revoked prior Departmental interpretations of Title IX, and the interrelationship between Title IX and the Regulation in terms of the consistency of the definition of the term "sex" as between them when applied to transgender students and their use of common school bathrooms — all coupled with the current proceedings at the Supreme Court — go to the heart of the Plaintiffs' ability to demonstrate a reasonable likelihood of success on the merits of their Title IX claim at this moment in time.

When the Supreme Court granted its stay and recalled the mandate of the Fourth Circuit in G.G., that action was necessarily based on several conclusions by that Court as expressed in the necessary vote of a majority of its Justices: (1) that there was a fair prospect that the G.G. decision will be reversed, see Maryland v. King, 567 U.S. 1301, 133 S.Ct. 1, 2, 183 L.Ed.2d 667 (2012) (Roberts, C.J., in chambers), or that there was a "significant possibility" of reversal, see Times-Picayune Pub. Corp. v. Schulingkamp, 419 U.S. 1301, 1305, 95 S.Ct. 1, 42 L.Ed.2d 17 (1974) (Powell, J., in chambers); and (2) that the party seeking it — the party who bears the burden of showing that the decision below was erroneous — had demonstrated the existence of such "extraordinary circumstances" as are necessary to warrant a stay. Graves v. Barnes, 405 U.S. 1201, 1203, 92 S.Ct. 752, 30 L.Ed.2d 769 (1972) (Powell, J., in chambers).

Although the Supreme Court granted its stay before the 2017 Guidance was issued, the stay remains in effect, so this Court must consider the impact of the stay on the Plaintiffs' ability to demonstrate a reasonable likelihood of success on the Title IX claim.49 Such consideration requires reconciling several competing legal standards in the context of conflicting legal analyses. First, a preliminary injunction is an extraordinary remedy and is not to be awarded as of right. Second, to support preliminary injunctive relief, a plaintiff needs to demonstrate a reasonable likelihood of ultimate success. Third, while it is hornbook law that the mere grant of discretionary review by the Supreme Court is not a prediction of that Court's merits decision, see Schwab v. Dep't. of Corr., 507 F.3d 1297, 1298 (11th Cir. 2007) (per curiam), this Court recognizes that a stay by that Court of a lower court judgment occurs only in extraordinary circumstances, and only when the party seeking a stay has carried its burden of showing that the decision below was likely erroneous or that there is a "fair prospect" or "significant possibility" of a reversal of the lower court's judgment. In this Court's view, while that standard may not require a showing of the same heft as does prevailing on a motion for preliminary injunctive relief, the fact that the Supreme Court decided to grant a stay in G.G. does exemplify that a majority of that Court has concluded that the likelihood of a reversal is sufficiently strong such that halting the impact of the judgment below was necessary.

Added to that mix is the fact that the issues now on the table in the G.G. appeal relate directly to the application of the directives of Title IX and the limitations of the Regulation in the context of the use of common school bathrooms by transgender students. Even assuming that the provisions of Title IX reach discrimination based on gender identity and transgender status within the rubric of "sex discrimination," the impact of the Regulation on that analytical construct is at the heart of the Fourth Circuit's opinion in G.G. and is at the center of the issues expressly and by necessary implication now before the Supreme Court in its review of the Fourth Circuit's now-stayed decision in G.G.

In that light, this Court simply cannot conclude that the path to relief sought by the Plaintiffs under Title IX is at the moment sufficiently clear such that they have a reasonable likelihood of success on the merits of that claim. Put plainly, the law surrounding the Regulation and its interpretation and application to Title IX claims relative to the use of common restrooms by transgender students, including the impact of the 2017 Guidance, is at this moment so clouded with uncertainty that this Court is not in a position to conclude which party in this case has the likelihood of success on the merits of that statutory claim.

The Court therefore concludes that the necessary showing of likely success on the merits on the Plaintiffs Title IX claim cannot be made at this juncture. Plaintiffs' request for preliminary injunctive relief on Title IX grounds will be denied.50

V.

The Plaintiffs appear to the Court to be young people seeking to do what young people try to do every day — go to school, obtain an education, and interact as equals with their peers. The School Board's consideration of these matters appears to have been open, extended and highly engaged. From all accounts, the District's professional educators have worked hard to treat all students, including the Plaintiffs, with respect and to provide all students with an excellent education in an inclusive environment. In doing so, they have sought to comply with the law as their own oaths require while fulfilling the directives of the School Board as embodied in Resolution 2. Their effort to navigate the confluence of the competing demands present here was considerable, and it is likely not the easiest task they have ever confronted. All counsel have put their respective client's best foot forward in their written and oral presentations, and have in all respects brought their "A game" to the task with thoroughness and professionalism.

The Court's holding here need not and does not decide other questions that will arise over time in other school settings or in other situations. What it does do is apply established legal principles to fundamentally undisputed facts to conclude that the Plaintiffs have shown a reasonable likelihood of success on the merits of their claim that the District's enforcement of Resolution 2 as to their use of common school restrooms does not afford them equal protection of the law as guaranteed to them by the Fourteenth Amendment.

An appropriate Order will issue.51