Joel DOE, a minor, BY AND THROUGH his guardians, John DOE and Jane Doe; Mary Smith; Jack Jones, a Minor, by and through his parents, John Jones and Jane Jones; and Macy Roe, Plaintiffs, v. 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, Defendants, and Pennsylvania Youth Congress Foundation, Intervenor-Defendant, 276 F. Supp. 3d 324

MEMORANDUM OPINION EDWARD G. SMITH, J.

The current issue before the court— whether the court should issue a preliminary injunction prohibiting a school district from maintaining its practice that started in the 2016-17 school year of allowing transgender students 'to use the bathrooms and locker rooms of the sex to which they identify—involves intricate and genuine issues, relating to, inter alia, the personal privacy of high- school-.students, a school district’s discretion, and judgment relating to the conduct of students in its schools', the meaning of the word “sex” in Title IX, and the rights of all students to complete access to educational opporttmities, programs, and activities available at school.

The general issue of transgender persons’ access to privacy facilities'such as bathrooms has recently received nationwide attention, and the issue of trans-gtender students’ access to educational institutions’ bathrooms and locker rooms aligning to their- gender identity has spurred litigation with unsurprisingly inconsistent results.

With regard to cases involving transgender students, they have generally centered on whether precluding transgender students from using facilities consistent with their gender identity’ violates ’ those ' students’ rights under the Equal Protection Clause of the Fourteenth Amendment or Title IX.

And as to Title IX, which generally precludes public schools receiving federal financial assistance from discriminating “on the basis of sex,” this has resulted .in a debate as to whether “sex” refers to biological sex (which the plaintiffs in this ■ case define as a person’s classification as male or female at birth’based on the presence of external and internal reproductive organs) or a broader and arguably more contemporary definition of sex that could include sex stereotyping or gender identity.

Here, the court is presented with four students, three who will be seniors for the upcoming 2017-18 school year and one student who recently graduated, claiming that the defendant school district’s practice of allowing transgender students (who the plaintiffs choose to identify as “members of the opposite sex” rather than as transgender students) to access bathrooms and locker rooms consistent with their gender identity violates (1) their constitutional right to privacy under the Fourteenth Amendment, (2) their right of access to educational opportunities, programs, benefits, and activities under Title IX because they are subject to a hostile environment, and (3) their Pennsylvania common law right of privacy preventing intrusion upon their seclusion while using bathrooms and locker rooms.

The plaintiffs not only raise concerns with being in privacy facilities with transgender students regardless of whether the transgender students actually view them in a state of partial undress, but they raise concerns with the possibility of viewing a transgender person in a state of undress or having a transgender person present to hear them while they are attending, to their personal needs while in the bathroom.

At bottom, the plaintiffs are opposed to the mere presence of transgender students in locker rooms or bathrooms with them because they designate them as members of the opposite sex and note that, inter alia, society has historically separated bathrooms and locker rooms on the basis of biological sex to preserve the privacy of individuals from members of the opposite biological sex.

The plaintiffs now seek a preliminary injunction which would require the school district to cease its practice and return to the prior practice of requiring all students to only use the privacy facilities corresponding to their biological sex. The plaintiffs have a heavy burden here because they are not seeking to preserve the status quo that has existed since the start of the 2016-17 school year and instead are seeking to have the school district cease its current practice.

The court has thoroughly reviewed all evidence in the record and has considered the parties’ well-articulated arguments in support of their respective positions. After reviewing the entire record, the court finds that the plaintiffs are not entitled to preliminary injunctive relief because they have- not shown that they are likely to succeed on the merits on any of their causes of action and they have failed to show irreparable harm. Accordingly, the court will deny the plaintiffs’ motion for a preliminary injunction. I.

SUBJECT-MATTER JURISDICTION The court has subject-matter jurisdiction over this action under 28 U.S.C. §§ 1331,1343, and 1367. II. VENUE Venue is proper pursuant to 28 U.S.C. § 1391(b)(2). ' III. PROCEDURAL HISTORY The initial plaintiff in this matter, Joel Doe, a minor, by and through his guardians, John Doe and Jane Doe, commenced this action on March 21, 2017, by filing (1) a complaint against the defendants, Boyer-town Area School District (the “School District”), Dr. Richard Faidley, in his official capacity, Dr. Brett Cooper, in his official capacity, and Dr. E.

Wayne Foley, in his official capacity, and (2) a motion to proceed pseudonymously. Doc. Nos. 1-4. On April 3, 2017, Aidan DeStefano, who was then a senior at the Boyertown Area Senior High School, and the Pennsylvania Youth Congress Foundation (“PYC”), a youth-led, statewide LGBTQ advocacy organization, filed a motion to intervene in this litigation. Doc. No. 7. On April 18, 2017, the plaintiff filed an amended complaint in which three new plaintiffs were added to this litigation:

(1) Mary Smith,

(2) Jack Jones, a minor, by and through his parents, John Jones and Jane Jones, and

(3) Macy Roe. Doc. No. 8.

In the amended complaint, the plaintiffs generally complain that the defendants’ policy and practice of permitting transgender individuals (who are identified as members of the “opposite sex” instead of being identified as “transgénder”) to use restrooms, locker rooms, and shower facilities designated for the biological sex to which they Identify violates the plaintiffs’ “fundamental right to bodily privacy contrary to constitutional and statutory principles, including the Fourteenth Amendment, Title IX, invasion of seclusion [under Pennsylvania state law], and Pennsylvania’s Public School Code of 1949, which requires separate facilities on the basis of sex.” Amended Compl. at 1Í1Í1, 2, 20, 41.

For relief, the plaintiffs seek, inter alia, (1) declarations that the defendants’ policy and actions (

a) violate their constitutional right to privacy, (

b) violate the Pennsylvania School Code of 1949, (

c) constitute an unlawful intrusion upon Joel Doe and Jack Jones’s seclusion and bodily privacy rights, and (

d) impermissibly burden their rights under Title IX to be free from discrimination .on the basis of sex by creating a sexually harassing hostile environment, (2) an injunction “enjoining the District’s policy and ordering the District to permit only females to enter and use the multi-user girls’ private facilities, including locker rooms and restrooms, and only males to enter and use the multi-user boys’ private facilities, including locker rooms and restrooms,” (3) compensatory damages, and (4) costs and attorney’s fees. Id. at 38-39.

With regard to the specific factual allegations pertaining to each plaintiff, Joel Doe alleges that he was a junior at the Boyertown Area Senior High School on or about October 31,. 2016, and was changing in the boys’ locker room for his mandatory physical education course. Id. at ¶¶ 10, 43, 50. While standing in his underwear and about to put on his gym clothes, he observed a “member of the opposite sex changing with him in the locker room.” Id. at ¶ 50. This “member of the opposite sex” was “wearing nothing but shorts and a bra.” Id.

Due to Joel Doe’s “immediate confusion, embarrassment, humiliation, and loss of dignity,” he “quickly put his clothes on and left the locker room.” Id. at ¶ 51. Joel Doe, along with other classmates, then, went to Dr. Foley, the assistant principal of the Boyertown Area Senior High School, to let him know what happened. Id. at ¶¶ 22, 52. Whíen Joel Doe informed Dr. Foley that there had been a girl in the locker room, Dr.

Foley indicated that although the legality of .this was up in the air, students who mentally identified themselves with the opiposite sex could choose the locker room and bathroom to use because their physical sex did not matter. Id. at ¶ 53. Dr. Foley also told Joel Doe that there was nothing he could do to protect him from this ■ situation and that he needed to “ ‘tolerate’ it and make it as ‘natural’ as he possibly [could].” Id. at ¶¶ 54-56.

The plaintiffs assert that this action “marginalized and shamed Joel Doe, and unlawfully attempted to coerce and intimidate [him] into accepting continuing violations of his bodily privacy.” Id. at ¶62. They further assert that the School 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.” Id. at ¶ 61. .

Because the School District’s policy of allowing persons of the opposite sex to use the boys’ facilities causes him anxiety, embarrassment, and stress, Joel Doe has opted to hold his bladder* and refrain from using restrooms as much about possible and, to the extent that he needs to use the restroom, he stresses about whether he could use a restroom without running into persons of the opposite sex. Id. at ¶ 63. Thus, the defendants’ policy inhibits him from timely voiding, which has “direct and adverse physiological effects.” Id. at ¶ 64. Joel Doe’s parents, John and Jane Doe, separately met with Dr. Foley, Dr.

Cooper, and Dr. Faidley to discuss this issue, See id. at ¶¶ 65-72. They met with Dr. Foley on or about November 2, 2016, and, during this ‘ meeting, Dr. Foley informed them that the School District was “‘all-inclusive’ ” and that if Joel Doe had an issue with the policy, Dr. Foley would get him permission to use the nurse’s office to change. Id. at ¶ 66. Mr. and Mrs. Doe then met with Dr. Cooper, the principal of Boy-ertown Area Senior High School, and Dr.

Cooper told them that he would not do anything since Joel Doe could change in the' nurse’s office if he did not want to change around people of the opposite sex. Id. at ¶ 67. Ultimately, they met with Dr. Faidley, who informed them that if Joel Doe was uncomfortable changing under the new policy or with using the nurse’s office, he could withdraw from school to be home schooled while still attending BCTS if he wanted. Id. at ¶ 72. As for Jack Jones, he was also a junior at the Boyertown Area Senior High School for the 2016-17 school year. Id. at ¶12.

During the first week of November 2016, he was changing in the locker room for his physical education class and was in his underwear when he saw classmates gesturing and looking at something behind them. Id. at ¶ 86. Upon turning, he saw a member of the opposite sex in the locker room with him. Id. He then “experienced immediate confusion, embarrassment, humiliation, and loss of dignity,” and put oh his clothes and exited the locker room. Id. at ¶ 87. Jack Jones informed his parents about the incident and his mother, Jane Jones, contacted and spoke to Dr. Cooper. Id. at ¶89. Jane Jones informed Dr.

Cooper about the privacy violation and asked “for such infractions to stop.” Id. Dr. Cooper informed her that the law required him to permit girls identifying as boys to use the private facilities with her son. Id. at ¶ 90. He did not offer any single-user facility for Jack Jones to use as an alternative. Id. Similar to Joel Doe, Jack Jones feels violated, humiliated, and embarrassed by the invasion of privacy. Id. at ¶ 91. He also opts to hold his bladder, refrains from using the restrooms as much as possible,' and stresses about whether hé can use a restroom without running into members of the opposite sex.

Id. at K93. This causes him an “ever-preserit distraction throughout the day, including during class instructional time.” Id. at 1194. Concerning Mary Smith, she was a junior at the Boyertown Area Senior High School for the 2016-17 school .year. Id. at ¶ 11. In March 2017, she entered a girls’ bathroom at the high school and saw a male student washing his. hands in the sink. Id. at ¶ 99. After immediately experiencing shock, confusion, and embarrassment, she went to report the incident to the school office. Id. at ¶ 104. She eventually was able to report the incident to . Dr.

Foley, and during her conversation with him she learned for- the first time that the school was permitting members of the opposite sex to use the girls’ bathrooms. Id. at ¶¶ 105-07. Dr. Foley stated that even though the student’s sex is male, the student could use the girls’ restrooms and ■locker rooms because the student identified as a girl. Id. at ¶ 108. Dr. Foley also indicated that they had not told parents about this policy, but he noted that they might be working on that. Id. at ¶ 109. Dr.

Foley did not offer Mary Smith the option to use restrooms or locker rooms outside the presence of male students, such as the nurse’s office. Id. at If 110. As with the Joel Doe and Jack Jones, Mary Smith “feels violated,, humiliated, and embarrassed by the invasion of her privacy.” Id. at ¶. 112. She also opts to hold her bladder, refrains from using the restrooms as much as possible, and stresses about whether she can use a restroom without running.into members of the opposite sex. Id. at ¶ 113. This causes her an “ever-present distraction throughout, the day, including during class instructional time.” Id.

She has also alleged that due to the stress and anxiety caused by the, new policy and the defendants’ .actions, she is not returning to the School District for her senior year. Id. at ¶ 117. She would have returned for her senior year if the School District’s policy was not in place. Id. at 1(118. Regarding the final plaintiff, Macy Roe, she is,an 18-year-old girl who.was a senior at the Boyertown Area Senior High School for the 2016-17 school year.

Id. at ¶ 13.- It does not appear from the amended complaint that Macy Roe had any direct interaction with a member of the opposite biological sex in a locker room or restroom; yet, due to the defendants’ policy and practice, she opts to hold her bladder, refrains from using the restrooms as much as possible, and stresses about whether she can use a restroom without running into members of the opposite sex. Id. at- ¶ 126. She is- also constantly distracted during the school day due to the aforementioned concerns, and asserts that the policy inhibits her from timely voiding. Id. at ¶ 127.

The plaintiffs filed an amended motion to proceed pseudonymously along with the amended complaint on April 18, 2017. Doc. No. 9. The plaintiffs then filed the instant motion for a preliminary injunction on May 17, 2017. Doc. No. 16. The court had a telephone conference to discuss the amended motion to proceed pseudonymously, the motion to intervene, and scheduling for the motion for a preliminary injunction on May 19, 2017.

On Máy 24, 2017, the court entered an order which, inter alia, (1) granted the motion to intervene without objection insofar as PYC sought to intervene, (2) provided the parties with additional time to submit briefs on the motion to intervene by Ai-dan DeStefano ins'ofar as the plaintiffs opposed his motion to intervene, (3) granted the amended motion to proceed pseudonymously without objection, (4) provided the parties with • deadlines for filing ■ submissions relating to the motion for a preliminary injunction, and (5) directed the parties to immediately com-menee with discovery related to the motion for a preliminary injunction.

Order, Doc. No. 29. PYC filed an answer to the amended complaint on May 26, 2016. Doc. No. 30. On the same date, PYC and Aidan DeSte-fano filed a supplemental memorandum in support of Aidan DeStefano’s motion to intervene. Doc. No. 31. The plaintiffs then filed a brief in opposition to Aidan DeSte-fano’s motion to intervene on June 2, 2017. Doc. No. 32. The defendants and PYC separately filed memoranda of law in opposition to the motion for a preliminary injunction on June 9, 2017. Doc. Nos. 33, 34. The plaintiffs then filed a reply brief in support of the motion for a preliminary injunction on June 16, 2017.

Doc. No. 36. On July 13, 2017, the plaintiffs filed a motion to present the testimony of Joel Doe and Mary Smith in camera during the evidentiary hearing on July 17, 2017. Doc. No. 46. The parties then separately filed proposed findings of fact and conclusions of law on July 14, 2017. Doc. Nos. 46-48. PYC filed a response to the plaintiffs’ motion to present testimony in camera on July 15, 2017. Doc. No. 49. The court held evidentiary hearings in this matter on July 17, 2017, and July 31, 2017.

On July 17, 2017, the plaintiffs presented the live testimony of Joel Doe and Mary Smith, and PYC presented the live testimony of its expert, Dr. Scott Leibow-itz, and Aidan DeStefano. On July 31, 2017, the court heard the continued testimony of Dr. Leibowitz (via videoconferencing) and also heard live testimony from Dr. Cooper. Throughout the proceedings, the parties additionally provided the court with, inter alia, numerous exhibits, deposition transcripts. of all four plaintiffs (including trial depositions of Macy Roe and Jack Jones) and other witnesses including Dr. Foley, Dr. Cooper, Dr. Faidley, and Dr.

Leibowitz. The parties separately filed supplemental findings of fact and conclusions of law on August 10, 2017. Doc. Nos. 57-59. The court then heard oral argument on the motion for a preliminary injunction on August 11, 2017. During the oral argument, the plaintiffs’ objected to exhibit 1 to the School District defendants’ supplemental proposed findings of fact and conclusions of law insofar as they had attached purported public school district policies referencing transgender students.

At the plaintiffs’ request, the court provided them with an opportunity to submit a memorandum of law in support of their objection, and the plaintiffs filed a motion to strike this exhibit on August 16, 2017. Doc. No. 63. On the same date, the School District defendants filed a response in opposition to the motion to strike. Doc. No. 64.

On August 17, 2017, PYC submitted a supplement to its proposed findings of fact and conclusions of law in which it seeks to have the court consider the Amid Curiae brief submitted by school administrators from 33 states and the District of Columbia in support of the plaintiff/appellant in G.G. ex rel. Grimm v. Gloucester County School Board, No. 15-2056 (4th Cir. 2015). Doc. No. 65. On the same date, the plaintiffs filed a response to PYC’s supplemental submission. Doc. No. 66. IY.

FINDINGS OF FACT After carefully considering all of the evidence presented during the evidentiary hearings on July 17, 2017, and July 31, 2017, and the evidence introduced and admitted before the court closed the eviden-tiary record on August 11, 2017, after assigning such weight to the evidence as the court deemed proper and disregarding the testimony that the court found to lack credibility, the pertinent facts are as follows: A. The School District Defendants, the School District’s Practice, and the Facilities at the Boyertown Area Senior High School 1.

The defendant, the Boyertown Area School District (the “School • District”), is organized under the laws of the Commonwealth of Pennsylvania, and includes public educational institutions that provide students a kindergarten through twelfth grade education. Amended Compl. at ¶¶ 14,15, Doc. No. 8. 2. The School District receives “Federal financial assistance” potentially subjecting it to the requirements of Title IX. Plaintiffs’ Ex. P-42, Resp. to Pis.’ First Set of Reqs. for Admis. to Defs. (“School Dist. Resp. to Requests for Admis.”) at ¶ 1. 3.

The School District is an “educational institution” as defined under Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681. School Dist. Resp. to Requests for Admis. at ¶ 2. 4. The School District’s Board of Directors (the “School Board”) establishes official policies for the School District. Transcript of Evidentiary Hr’g on July 31, 2017 (“7-31-17 Tr.”) at 108. 5. The defendant, Dr. Richard H.

Faid-ley, who has been working in the education field since 1990, served as the Superintendent of Schools for the School District from August 2013 until resigning as Superintendent no later than July 25, 2017, June 21, 2017 Dep. of Dr. Richard H. Faidley (“Faidley Dep.”) at 12; 7-31-17 Tr. at 107. 6. The defendant, Dr. Brett A. Cooper, is the Principal of the Boyertown Area Senior High School (“BASH”), and has worked in this role for the past eight-and-a-half years. 7-31-17 Tr. at 106,130. Prior to becoming Principal at BASH, Dr. Cooper was an Assistant Principal at BASH for three-and-a-half years.

July 7, 2017' Dep. of Dr. Brett A. Cooper (“Cooper Dep.”) at 18. 7. There were 1659 students at BASH during the 2016-17 school year. June '21, 2017 Dep. of Dr. E. Wayne Foley (“Foley Dep.”) at 15. 8. As Principal of BASH, Dr.

Cooper is responsible for all of BASH’S' operations, including, inter alia, responding to inquiries by parents, guardians, and community members, having final decision over disciplinary matters, supervising staff and faculty, implementing the curriculum approved by the School Board, and establishing,' in conjunction with the School District' office lead by the Superintendent, practices and procedures affecting BASH students. Cooper Dep. at 20, 21. 9.Dr.' Cooper reports directly to School District Assistant Superintendent of Operations Rob Scoboria (“Assistant Superintendent Scoboria”).

Cooper Dep. at 21; 7-3Í-17 Tr. at 106, Dr. Cooper often communicates with Assistant Superintendent Scoboria about operations, policies, and special education issues involving BASH. Cooper Dep. at 22,23. 10.. Assistant Superintendent Scoboria reports directly to Dr. Faidley. Cooper Dep. at 21. 11. BASH has grade-level Assistant Principals who report directly to Dr. Cooper. Cooper Dep. at 23; 7-31-17 Tr. at 110-11. . . 12. One of the BASH Assistant Principals is Di’, E. Wayne Foley, who is assigned to the graduating class of 2018. Cooper Dep. at 24; Foley Dep. at 11, 12. Dr.

Foley has served in this role since April 30,2012. Foley Dep. at 11. 13. Dr. Cooper meets regularly with the BASH Assistant Principals. Cooper Dep. at 24. 14. Prior to the 2016-17 school year, BASH students were to use the- locker room or bathroom aligning with their biological sex. 7-31-17 Tr. at 131; Faidley Dep. at 34,40. 15. BASH students were previously separated on the basis of their biological sex in part to protect their personal privacy and safety from members of the opposite sex while using bathrooms and locker rooms. 7-31-17 Tr. at 131, 132; Cooper Dep. at 35; Foley Dep. at 23, 24,26, 53-54. 16.

Under this practice, BASH administration would have disciplined and, in fact, disciplined,. any students if they entered the opposite biological sex’s bathroom or locker room. Foley Dep. at 24, 25; 7-31-17 Tr. at 112; Cooper Dep. at 31. 17. In the 2014-15 school year, a school counselor communicated to Dr. Cooper that Aidan DeStefano (“DeStefano”), a tenth grade student and biological female who was identifying as a male, ie. a transgender male, was uncomfortable using the girls’ bathrooms at BASH. Cooper Dep. at 75-78; see also Faidley Dep. at 25, 26, 27. 18. Dr.

Cooper discussed this request, and the possibility of DeStefano using the single-user facility in the nurse’s office, with Assistant Superintendent Scoboria. 7-31-17 Tr. at 109. 19. The School District allowed DeSte-fano to use a private, single-user facility in the nurse’s office for restroom ahd changing purposes. Cooper Dep. at 79; Faidley Dep. at 28; Transcript of Evidentiary Hr’g on July 17, 2017 (“7-17-17 Tr.”) at 216; 217. 20.

On May 13, 2016, the United States Department of Justice, Civil Rights Division, and the United States Department of Education, Office for Civil Rights, issued a “Dear Colleague Letter on Transgender Students” (the “May 2016 Dear Colleague Letter”). Defendants’ Mem. in Opp. to the Mot. for Prelim. Inj. at Ex. 2, Doc. No. 34-2. 21.

The May 2016 Dear Colleague Letter stated, inter alia, that Title IX’s prohibition of “sex discrimination in educational programs and activities operated by recipients of Federal financial assistance ... encompasses discrimination based on a student’s gender identity including discrimination based on a student’s transgender status.” May 2016 Dear Colleague Letter at 1. 22.The May 2016 Dear Colleague Letter indicated, inter alia, that the Department of Justice and Department of Education “have determined that this letter is significant guidance.” May 2016 Dear Colleague Letter at 1- (emphasis in original; footnote omitted). 23 The May 2016 Dear Colleague Letter stated, inter alia, as follows: The Departments treat a student’s gender identity as the student’s . sex for purposes of Title IX and its implementing regulations.

This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity. The Departments’

interpretation is consistent with courts’ and other' agencies’

interpretations of Federal laws prohibiting sex discrimination. The Departments interpret Title IX to require that when, a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment' requirement that students must meet as a prerequisite to being treated consistent with their gender identity.

Because transgender students often are unable to obtain identification document's that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.

A school’s Title IX obligation to ensure nondiscrimination on the -basis of sex requires schools to provide transgender students equal access to educational programs and- activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.

May 2016 Dear Colleague Letter at 2 (footnotes omitted). 24.With regard to “Sex-Segregated Activities and Facilities,” the May 2016 Dear Colleague Letter stated in pertinent part as follows: Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances.

When a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity. [] Restrooms and Locker Rooms. A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity. A school may not require transgender students to use facilities inconsistent with their gender identity or to use individual-user facilities when other students are not required to do so.

A school may, however, make individual-user options available to all students who voluntarily seek additional privacy. May 2016 Dear Colleague Letter at 3 (footnotes omitted). 25. The School District’s receipt and awareness of the May 2016 Dear Colleague Letter prompted its administration, through consultation with the School District’s solicitor, to first discuss the use of the locker rooms and bathrooms by transgender students. Faidley Dep. at 24, 25; Foley Dep. at 18,19, 20. 26.

The School District’s administration, in conjunction with consultation with the solicitor, treated the May 2016 Dear Colleague Letter as the “law of the land” and decided to follow it. Faidley Dep. at 41; Foley Dep. at 21. 27. The School District understood the direction by the Departments of Justice and Education required it to permit transgender students to use the restrooms and locker rooms aligned with their gender identity. 7-31-17 Tr. at 109; Faidley Dep. at 24-25. 28.

Based on the May 2016 Dear Colleague Letter and consultation ■ with the School District’s solicitor, since the beginning of the 2016-17 school year, the School District has, upon request, permitted transgender students to use restrooms and locker rooms aligned with their gender identity on a case-by-case basis. 7-31-17 Tr. at 108-10; Faidley Dep. at 23, 24, 25, 34, 83; Cooper Dep. at 84; Plaintiffs’ Ex. P-49, Boyertown Area Sch. Dist. Frequently Asked Questions About Issues Regarding Doe vs. BASD (“BASD FAQ”). 29. The School District employs a case-by-case approach because “[tjhere are different contexts.

Some students are at the beginning stages, some students are at the stage where they’re going through surgical procedures,... Some students ... want to use the locker room and restroom facilities of them gender identity. Some students would prefer to use a private environment.” Faidley Dep. at 83-84. 30. The School District’s practice concerning transgender students and its implementation and the criteria the School District uses in reaching a decision have not been reduced to writing. Faidley Dep. at 24; 7-31-17 Tr. at 138. 31. Prior to the 2016-17 school year, Dr.

Cooper was unaware of any BASH transgender student requesting to use a locker room or restroom consistent with their gender identity rather than their biological sex. 7-31-17 Tr. at 108,109. 32. At the start' of the 2016-17 school year, DeStefano requested to cease using the single-user facility at the nurse’s office and start using the boys’ multi-user privacy facilities. Cooper Dep. at 80. 33. Upon receiving this request, Dr. Cooper consulted with DeStefano’s school counselor and Assistant Superintendent Scoboria. Cooper Dep. at 80, 81. Additionally, the School District’s administration, including Dr.

Faidley, and the School District’s solicitor, discussed the request. Faidley Dep. at 29, 30, 31. 34. After discussions between the School District’s central administration, including Dr. Faidley and Assistant Superintendent Scoboria,- and the solicitor, Assistant Superintendent Scoboria informed Dr. Cooper>that in-light of the May 2016 Dear Colleague Letter, BASH should allow students who identify with the opposite sex to use the privacy facilities of the gender in which they identify if that makes them more comfortable. Faidley Dep. at 31; Cooper Dep. at 107,108. 35.

The School District approved DeS-tefano’s request to use the boys’ multi-user privacy facilities. Cooper Dep. at 88-89. 36. Dr. Cooper communicated the decision allowing DeStefano to use the boys’ privacy facilities to his administrative team. Cooper Dep. at 109,110. 37. During the 2016-17 school year, the School District, through Dr. Cooper, granted permission to another transgender male (Student

A) permission to use the boys’ restrooms and locker rooms, and one transgender female (Student

B) to use the girls’ restrooms because those facilities were aligned with their gender identity. Cooper Dep. at 86-93. 38. During the 2016-17 school year, three other transgender male students (Students FF, GG, and HH) requested permission and received permission to use different first names aligned with their gender identity, and to be addressed by male pronouns. Cooper Dep. at 94-103. 39. Thus, during the 2016-17 school year, BASH had six students who acknowledged identifying with the opposite biological sex. Foley Dep. at 21; Cooper Dep. at 86-103. 40. Dr.

Cooper, expects three of the six students to return to BASH for the 2017-■18 school year. 7-31-17 Tr. at 111. The other three students have graduated from BASH. Id. 41. Before the School District grants permission to a transgender student to use the restrooms and/or locker rooms consistent with the student’s gender identity, the student has discussed the student’s situation and desire with the student’s school guidance counselor, the counselor has discussed this issue with the grade-level assistant principal, and the counselor and the grade-level assistant principal 'have conferred with Dr. Cooper.

Foley Dep. at 55, 56; School Dish’s Interrogs. Resps. at p. 6; 7-31-17 Tr. at 144; Cooper Dep. at 88; Faidley Dep. at 23, 24. Thus, the decision to grant a request by a transgender student to use the privacy facilities consistent with the student’s gender identity is “not just a spur of the moment thing,” and is not “automatic” upon receiving the i-e-quest. Cooper Dep. at 83; 7-31-17 Tr. at 144, 148. 42.

The School District attempts to make every BASH student, including transgender students, comfortable. 7-31-17 Tr. at 138,139; see also Faidley Dep. at 63 (indicating that the School District’s practice is “that any student, regardless of whether they’re transgender or cisgender, would work with the Administration to provide ... them an area where they could feel comfortable.”) Faidley Dep. at 63. 43.

A student does not need to dress or groom in a particular manner consistent with the stereotypes of a particular sex for the School District to permit that student to use a particular privacy facility. 7-31-17 Tr, at 139; Faidley Dep. at 80, 81. The student also does not need to change the student’s name, have surgery, or receive hormone treatments. 7-31-17 Tr. at 138, 139,140; Cooper Dep. at 115. . 44.

When deciding whether to allow.a student identifying with the opposite sex to- use privacy facilities consistent with the student’s gender identity, the School District is primarily concerned with what makes the requesting student comfortable. Cooper Dep. at 114-15. ‘45. None of the School District administrators' are able to determine whether a student is gender nonconforming or gender dysphoric, and they cannot determine a student’s gender identity. 7-31-17 Tr. at 130. Instead, they rely on the reporting by the student. 7-31-17 Tr. at 131. 46.

To date, the School District has not turned down a request'by a transgender student to use a privacy facility corresponding to the student’s gender identity. 7-31-17 Tr. at 140. 47. The School District did not initially inform parents or students of the decision to change the existing practice and permit transgender, students at BASH to use facilities of the gender corresponding to their gender identity. 7-31-17 Tr. at 134; Faidley Dep. at 46, 47; ■ Foley Dep. at 30; Cooper Dep. at 29. 48.

The School District’s decision to change the existing practice to allow transgender students, if requested, to go into the locker room or bathroom facility corresponding to their gender identity was not made in conjunction with the School Board. Faidley Dep. at 38, 43, 44. 49.

Prior to changing the practice at the School District with respect to transgender students’ use of privacy facilities, the School District had not received complaints from students about sharing privacy facilities with persons of the same biological sex who identify with the opposite sex. 7-31-17 Tr. at 136; Faidley Dep. at 54; Foley Dep. at 28, 29. Thus, complaints from students were not part of the basis for the School District changing its practice. 7-31-17 Tr. at 136. 50. Dr.

Cooper is unaware of any instance where a transg'ender male student went into the boys’ bathroom or locker room without first obtaining permission from Dr. Cooper. Cooper Dep. at 97, 98. 51. Students who have not requested and received permission from the School District to use restrooms ' aligned with their gender identity are not allowed to use the restrooms or locker rooms of the opposite biological sex. 7-31-17 Tr. at 112; Foley Dep. at 37.

If a student was to enter an opposite-sex restroom without permission .and the administration was able to identify the offending student, the offending student would face consequences for doing so. 7-31-17 Tr. at 112, 131, 132. On five to ten occasions during Dr. Cooper’s tenure, BASH students have wrongfully entered the opposing biological sex’s locker room. Id. at 112. ■ 52. Dr.

Cooper is unaware of any BASH student who has requested to use a privacy facility corresponding to the student’s gender identity who was not already using, an initial or a name that is aligned with the student’s gender identity. 7-31-17 Tr. at 144. 53. Dr. Cooper is unaware of any transgender male student who has asked to use the boys’ facilities who grooms and dresses like a stereotypical girl; similarly, he is unaware of any transgender female student who has asked to use the girls’ facilities who grooms and dresses like a stereotypical boy. 7-31-17 Tr. at 144, 145. 54. Dr.

Cooper is unaware of any transgender student at BASH who did not at first avoid using the facilities corresponding with the student’s biological sex and then used the single-user facilities, before requesting to use the facilities corresponding with the student’s gender identity. 7-31-17 Tr. at 145. 55. Simply because a BASH student has requested and obtained a name change to correspond with the gender identity of the student does not mean that this student is precluded from using the facility consistent with the student’s biological sex. 7-31-17 Tr. at 142,143. ■ ■ 56.

If a BASH student changes for gym (or “physical education”) class, the student is expected to store belongings in a gym locker or in their , hall locker (depending on the proximity of the student’s hall locker to the gymnasium). Cooper Dep. at 43. In general, students are permitted to bring their personal belongings into the gymnasium during class, but only if they are not changing for class. Cooper Dep. at 43. f 57. ■ BASH students are not assigned lockers in the locker room and, to the extent that the- student desires to secure belongings in the locker room, the student must bring in a lock to secure it.

Cooper Dep. at 43. 58. BASH has undergone significant renovations over the past one to two years. Cooper Dep. at 35-38,41-42; Faidley Dep. at 18,19, 21. 59. The renovations to the existing locker rooms started in May 2016 and concluded at the end of October 2016. . Cooper Dep. at 41-42; Faidley Dep. at 18, 19, 21. Both locker rooms received similar renovations. Faidley Dep. at 20, 60. During the locker room renovation period, BASH students were not required to dress for gym class. , Cooper Dep. at 42. 61.

During the renovations, the showers in the locker rooms were changed from “gang showers” to single-user showers which have curtains for privacy. 7-31-17 Tr. at 125-26; Cooper Dep. at 44; Faidley Dep. at 18. Each locker room now contains four shower stalls. 7-31-17 Tr. at 126. 62. The School District. changed the shower areas of the locker rooms to individual shower stalls in part to provide for more privacy for BASH students and to allow the School District to allocate space elsewhere as the BASH shower rooms were infrequently used for showering and, as such, space was better used elsewhere.

Cooper Dep. at 44, 45; Faidley Dep. at 20, 22. 63. Very few, if any, BASH students, take showers after gym class. Faidley Dep. at 19; June 28, 2017 Dep. of Joel Doe (“Joel Doe Dep”) at 73; June 28, 2017 Dep. of Mary Smith (“Mary Smith Dep.”) at 37-38; 7-17-17 Tr. at 58; June 29, 2017 Dep. of Jack Jones (“Jack Jones Dep.”) at 35, 47, 142;' June 29, 2017 Dep. of- Macy Roe (“Macy Roe Dep.”) at 39, 40, 44. 64. The renovations included moving the lockers in the locker room to the outside walls and creating a large open space in the common area of the locker rooms. Cooper Dep. at 38-39; Pis.’ Exs.

P1-P5, P-55; 7-17-17 Tr. at 87-88. 65. In addition to the lockers around the perimeter of the common room of the locker room, there is a support wall with a row of approximately 24 lockers the lies in the middle of the common area of the boys’ locker room. Pis.’ Exs. P-1, P-2, P-4, P-55. 66. The renovations included the addition of several bathrooms—multi-user and single-user—for both students and staff. 7-31-17 Tr. at 118-22; Defs.’ Exs. D-53, D-54. 67.

All of the multi-user bathrooms at BASH have individual toilet stalls, each with a locking door for privacy. 7-31-17 Tr. at 118-19; Faidley Dep at. 16,17; Joel Doe Dep. at 114; Mary Smith Dep. at 47-48. 68.There are approximately six to eight multi-user bathrooms for male students at BASH, and there is a similar number for female students. Faidley Dep. at 16. . 69. The boys’ and girls’ locker rooms at BASH have individual bathroom stalls and shower stalls with curtains. Cooper Dep. at 40; Mary Smith Dep. at 48. 70. The individual toilet stalls in the boys’ locker room have doors on them with functioning locks.

Joel Doe Dep. at 202, 203. 71. The multi-user bathrooms are marked with signs using the universal symbols for men and women and/or the words “boys” or “girls.” Cooper Dep. at 60, 69, 70, 71; see also Faidley Dep. at 14-15 (indicating that the BASH bathrooms have signs identifying the sex of the students permitted to use them). 72. Dr. Cooper agreed that toilet stalls, urinal dividers, and shower stalls provide some privacy from persons of the opposite sex. 7-31-17 Tr. at 132; Cooper Dep. at 123,124. 73. The renovations included. placing toilet dividers between urinals and toilet stalls in the new facilities.

Cooper Dep. at 39-40. To the extent that the urinals in the existing boys’ rooms did not have dividers, the renovations did not add dividers. Id. at 45, 46. For the new boys’ multi-user bathrooms, there are individual stalls and the urinals in these bathrooms have dividers between them. Id. at 68, 69. .74. Although prior to the 2016-17 school year only grades ten through twelve attended school at BASH, after the renovations, BASH will include ninth through twelfth grades in 2017-18. 7-31-17 Tr. at 107. 75.

For the upcoming 2017-18 school year, there are eight potential single-user bathrooms available for use by BASH students. 7-31-17 Tr. at 119, 120, 121, 122 & Defs.’ Exs. D-53, D-54. 76. Approximately three or four of those eight single-user facilities are available depending on the business of the student at the time; for example, there is a single-user bathroom at the attendance office that would be available for anyone with business at the attendance office. 7-31-17 Tr. at 119, 121,122 & Defs.’ Ex. D-54. 77.

F,or the upcoming 2017-18 school year, there are two locker rooms (one for boys, one for girls) available for the BASH students’ physical education classes. 7-31-17 Tr. at 122, 123; Defs.’ Ex. D-54; Cooper Dep. at 39, 40. Each locker room contains a team room, and a student could potentially change their clothes in the team rooms without being viewed by other students. 7-31-17 Tr. at 123. The team rooms contain lockers for students to potentially store their belongings. Id. 78. BASH has two additional locker rooms, which also contain team rooms. 7-31-17 Tr. at 124; Defs.’ Ex. D-54.

Students changing in the team rooms would not have to pass through the main locker rooms to get to the gymnasium. 7-31-17 Tr.- at 124. The team rooms have lockers where students could potentially -store their belongings. Id. 79. The farthest team room is located approximately 150 feet (and down the hallway) from the gymnasium. 7-31-17 Tr. at 124. 80.

No BASH student is required to change clothes in a multi-user locker room; instead, if a student at BASH does not feel comfortable changing in a locker room with a transgender student, the uncomfortable student does not have to change in the locker room. 7-31-17 Tr. at 124-25. The School District would allow the uncomfortable student to use one of the single-user facilities to change clothes. Id. at 125. These facilities are equally available to transgender or cisgender (an individual that is not transgender) students if they feel uncomfortable changing in the locker room. Id. at 141,142,147. 81.

There is a single-user bathroom facility located approximately 70 feet from the gym. 7-31-17- Tr. at 146. If a BASH student chose to change in this room, the student could store any belongings with the -gym teacher. Id. at 146. The School District plans on placing a locker inside this single-user facility. Id. at 148. 82. There is also a single-user facility in the nurse’s office (which is in a new location for the 2017-18 school year), and the School District also plans on placing a locker in this. single-user facility, 7-31-17 Tr. at 148,149; Defs.’ Ex. D-54. 83..

Students have been able to use the single-user bathroom in the nurse’s office with the permission of the nurse. Cooper Dep. at 62, 63, 67. • 84. -The’School District also-plans on placing a locker in the single-user facilities located where the old nurse’s office was located and in the “600s” area of BASH. 7-31-Í7 Tr. at 148, 149; Defs.’ Exs. D-53, D-54. 85. Thus, four of the single-user restrooms for students will have lockers added for the 2017-18 school year so that students changing in those restrooms can store their belongings. 7-31-17 Tr. at 148-49. . 86.

For BASH -students who do-not want to change in a locker room with'a transgender student, the School District is committed to making-facilities available for that student to change outside of the presence of the transgender student. 7-31-17 Tr, at 149; 87. Dr. Faidley believes that all students can have an expectation of privacy and if a student is concerned about their environment, the School District would work with the concerned student to provide an alternative environment. Faidley Dep. at 65-66. 88. Dr.

Cooper believed that students changing in the common areas of the bathrooms had an expectation of privacy in those areas. 7-31-17 Tr. at 132. '89. On May 23, 2017, the School District hired an architectural firm to “evalu-( ate the feasibility of modifying existing, multi-user high school facilities to enhance the level of privacy for all students.” 7—31— 17 Tr. at 126, 127; Defs.’ Ex. D-36, May 24, 2017 Release.

To date, this project has minimally moved forward insofar as the project is still identifying the relevant stakeholders. 7-31-17 Tr. at 127, 140, 141. 90; The practice of allowing transgender students to use the restrooms and locker rooms aligned with their gender identity has not resulted in any disruption to the education program or activities of the School District. 7-31-17 Tr. at 116. There have been no student or employee protests or walkouts regarding the practice. Id. Per Dr. Cooper’s experience, BASH students have accepted and integrated the transgender students into the student population. Id. 91.

The School District has not received any requests to use bathrooms or locker rooms from individuals identifying as gender fluid (meaning that the student identifies as male in some situations and female in other situations) or third gender. 7-31-17 Tr. at 112, 113, 129, 130. Dr. Cooper is unaware of any gender fluid or third gender students being enrolled at BASH. 7-31-17 Tr. at 112, 113. The School District does not have a plan in place yet to consider such requests from gender fluid or third gender students. 7-31-17 Tr. at 130; Cooper Dep. at 84, 85. 92.

No transgender student has requested permission to shower in either of the BASH locker rooms, and Dr. Cooper is unaware of any transgender student ever showering in either of the BASH locker, rooms. 7-31-17 Tr. at 125. 93. The School District has an anti-bullying policy. Faidley Dep. at 82. 94. The School District has an anti-discrimination policy and a sexual harassment policy. Defs;’ Exs; D~44, D-46. 95.

Dr, Cooper indicated that ■ the School District’s position is that a female student at BASH has no expectation of privacy from a transgender female when using the common areas of the bathrooms or locker rooms. 7-31-17 Tr. at 133-34; Cooper Dep. at 126. 96. Dr. Cooper believes that there are many ways that the School District could support transgender students without giving them access to privacy facilities corresponding to their gender identity. 7-31-17 Tr. at 138. 97.

The School District has been very supportive of all students, including transgender students, and even prior to the practice permitting transgender students to use the privacy facilities corresponding to their gender identity, the School District granted transgender students’ requests to be called by an initial instead of their name; granted requests for name changes to align with the student’s preferred gender; encouraged teachers and staff, to use a student’s preferred pronouns; gave students access to single-user bathrooms if they were uncomfortable using bathrooms of their biological sex; and provided counseling support. 7-31-17 Tr. at 136-138. ■ 98.

On February 22, 2017, the United States Department of Justice, Civil Rights Division, and the United. States Department of Education, Office for Civil Rights, issued a Dear Colleague Letter in which they withdrew the guidance provided in (1) a letter from Emily Prince to James A. Ferg-Cadima, A'cting Deputy Assistant Secretary for Policy, Office for Civil Rights at the Department of Education dated January 7, 2015, and (2) the May 2016 Dear Colleague Letter (the “February 2017 Dear Colleague Letter”). Defendants’ Mem. in Opp. to the Mot. for Prelim.

Inj. at Ex. 7, Feb. 22, 2017 Dear Colleague Letter; see also id. at Ex. 8, January 7, 2016 Letter from Emily Prince. 99.In the February 2017 Dear Colleague Letter, the Departments explained that the aforementioned guidance documents “do not ... contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any public process.” Feb. 22, 2017 Dear Colleague Letter. ■ ■ . . ■. 100. In the February 2017 Dear Colleague Letter, the Departments further explained that [t]his

interpretation has given rise to significant litigation regarding school restrooms and locker rooms. The U.S. Court of Appeals for the Fourth Circuit concluded that the term “sex” in the regulations is ambiguous and deferred to what the court characterized as the “novel”

interpretation advanced in the guidance. By contrast, a federal district court in Texas held that the term “sex” unambiguously refers to biological sex and that, in any event, the guidance was “legislative and substantive” and thus formal rulemaking should have occurred prior to the adoption of any such policy. In August of 2016, the Texas court preliminary enjoined enforcement of the

interpretation, and that nationwide injunction has not been overturned. In addition, the Departments believe that, in 'this context, there must be due régard for the' primary role of the States and local school districts in establishing educational policy. Feb. 22,2017 Dear Colleague Letter. 101. Based on the aforementioned explanation, the Departments indicated that they are “withdrawing] and' rescinding] the above-referenced guidance documents in. order to further and more completely consider the legal issues involved.” Feb. 22,2017 Dear Colleague Letter. 102.

The School District received the February 22, 2017 Dear Colleague Letter. Plaintiffs’ Ex. P-42, Resp. to Pis.’ First Set of Reqs. for Admiss. to Defs.’ at ¶ 8. 103.

Despite the rescission of the guidance provided in the May 2016 Dear Colleague Letter, the School District continued and intends to maintain the current practice with respect to transgender students and requests to use privacy facilities corresponding to their gender identity because “the district believes that transgender students should have the right to use school bathroom and locker facilities on the same basis as non-transgender students.” BASD FAQ; 7-31-17 Tr. at 134-35.

The School District believes that its “position is consistent with guidance from the Pennsylvania School Boards Association, the National School Boards Association, our Solicitor and what the school district administration believe is fair and equitable under the circumstances.” BASD FAQ. ' 104. The School Board voted to continue the practice implemented by the School District’s administration by a vote of 6-3 on March 28, 2017. Faidley Dep. at 45, 46. B. Plaintiff Joel Doe and his Guardians, John Doe and Jane Doe 105.

Joel Doe is, as of July 17, 2017, a 17-year-old boy who is going into his senior year of high school for the 2017-18 school year. 7-17-17 Tr. at 81, 82, 83; Joel Doe Dep. at 16. 106. Joel Doe was a junior student, at BASH for the 2016-17 school year. 7-17-17 Tr. at 81, 82;' Amended Compl. at ¶ 10; Joel Doe Dep. at 16. 107. During the 2016-17 school year, Joel Doe split his school day between BASH and the Berks Career and Technology Center (“BCTC”). 7-17-17 Tr. at 84. 108.

During the 2016-17 school year, Joel Doe would spend his afternoons at BASH and would attend gym class once out of a six-day cycle. 7-17-17 Tr. at 84, 117. 109. On October 31,2016, Joel Doe was in the boys’ locker room changing clothes for gym class along with approximately 15 other boys. 7-17-17 Tr. at 85, 88. 110. Joel Doe took off his pants so that he could put on his gym shorts. 7-17-17 Tr. at 88. 111. While Joel Doe was in his underwear and a shirt, another student tapped him on the shoulder and said “turn around.” 7-17-17 Tr. at 88. 112.

Joel Doe then turned around and saw Student A standing there. 7-17-17 Tr. at 88. Student A was wearing shorts and a purple K Swiss sports bra. Joel Doe Dep. at 22-23,116-17. 113. Although Student A is a transgender boy, Joel Doe testified that he believed that Student A was a girl because he had middle school classes with Student A and believed Student A identified as a girl at that time. 7-17-17 Tr. at 89. 114.

Upon seeing Student A, Joel Doe asserts that he was embarrassed and humiliated and scrambled to finish putting on his shorts, place everything in his locker, and lock the locker so he could leave the locker room and get to gym class. 7-17-17 Tr. at 88; Joel Doe Dep. at 25-26. 115. Joel Doe participated in gym class and returned to the locker room to change out of his gym clothes and into his school clothes. 7-17-17 Tr. at 90. Joel Doe retrieved his clothes from his locker and then moved to an area where he hoped that Student A, who was located in the same spot of the locker room prior to class, could not see him.

Id. Joel Doe hurried to change and left the locker room. Id. 116. While in the locker room, Joel Doe overheard another unidentified student tell Student A, “You don’t belong here, you B word.” 7-17-17 Tr. at 90-91. 117. After exiting the locker room, Joel Doe and a few classmates decided to go to school administration to discuss what happened. 7-17-17 Tr. at 91. They first went to the guidance counselor’s office, but were directed to speak to their grade-level principal because the topic of their discussion was not an academic issue. Id. at 92. 118.

Joel Doe and the other students then went to the office of the grade-level principals and asked to speak to a principal about an issue that occurred in the locker room. 7-17-17 Tr. at 92. 119. Dr. Foley came out to meet the boys, and they went into his office to talk. 7-17-17 Tr. at 92; Foley Dep. at 42. The door to Dr. Foley’s office remained open throughout the conversation. 7-17-17 Tr. at 92, 93; Foley Dep. at 42. Dr. Foley indicated that he had no expectation of “confidentiality” during the meeting. Foley Dep. at 42. 120. Joel Doe informed Dr.

Foley that there was a “girl” in the locker room, and he questioned the legality of the “girl” being in the locker room. 7-17-17 Tr. at 92; Pis.’ Ex. P-6. 121. Dr. Foley explained that any transgender student could choose the bathroom and/or locker room in which they identify their gender. 7-17-17 Tr. at 92; Pis.’ Ex. P-6. He also stated that they were “trying to get another ruling on that too, because that law continues to change instantaneously.” Pis.’ Ex. P-6. 122. Joel Doe asked Dr. Foley to define transgender, and Dr.

Foley defined it as “any mental, state that a person has that they believe that they, identify with” and stated that “[i]t does not have t,o be physical at this point.” Pis.’ . Ex. P-6; Joel Doe Dep. at 37, 38. 123. Joel Doe then asked Dr. Foley if there was anything he could do to “sepá-rate” this group of boys from Student A in the locker room. 7-17-17 Tr. at 93, 118; Pis.’ Ex. P-6. Dr. Foley stated that there was nothing he could do “instantaneously,” but he was waiting to get a “ruling” on it. Pis.’ Ex. P-6. He indicated that “in the meantime I just need you to, unfortunately, tolerate it.” Pis.’ Ex.

P-6; 7-17-17 Tr. at 93, 118. He further explained that they should “[y]ou know, try and make it as unnatural [sic] as possible. You know, just make it as natural as you possibly can.” Pis.’Ex. P-6; 7-17-17 Tr. at 93. 124. Joel Doe asked Dr. Foley to let him know when he found put whether Student A would continue to use the locker room. Pis.’ Ex. P-6. Dr, Foley told Joel Doe that he would know the answer because Student A either would stay in there or Student A would no longer be in there. Pis.’ Ex. P-6. 125. As Joel Doe and the other students were leaving the office at the end of the conversation, Dr.

Foley asked them to be “[a]s natural as possible ... as kind as you can be.” Pis.’ Ex, P-6. 126. Before speaking with Dr. Foley, Joel Doe was not made aware of the School District’s change in practice to allow students to use the bathrooms and locker rooms of the opposite sex if they identified with that sex. 7-17-17 Tr. at 110. • 127. Joel Doe testified that after speaking to Dr. Foley, he believed that he had to tolerate having Student A in the locker room with him as it was his “only option.” 7-17-17 Tr. at 110. , 128.

When Joel Doe returned home from school on October. 31, 2016, he informed his guardians,, John Doe and Jane Doe, that while changing in the locker room he had observed a “girl,” Student A, in the locker room. July 12, 2017 Dep. of Jane Doe (“Jane Doe Dep.”) at 9, 10, 40; July 12, 2017 Dep. of John Doe (“John Doe Dep.”) at 11.

Joel Doe told his guardians that he was in his underwear when he saw Student A wearing shorts and a “bra thingy.” Jane Doe Dep. at 9, 10,11; John Doe Dep. at 11. 129. , Prior to Joel Doe reporting that he saw Student A in the locker room, Jane Doe and John Doe did not know that the School District was letting transgender students (whom they characterized as members of the opposite biological sex) into the locker rooms of the gender in which they identify. Jane Doe Dep. at-13. 130. Before Joel Doe had gym class again, Dr. Foley met with him. 7-17-17 Tr. at 121. Dr.

Foley apologized for any mistake and offered Joel Doe two alternative places where he could change in private. Id. at 121..Dr. Foley told Joel Doe that he could use' either the single-user facility in the nurse’s office or the single-user facility near the locker room. Foley Dep. at 48. Dr. Foley asked Joel Doe to choose one of the options, which he did. 7-17-17 Tr. at 121. 131. Dr.

Foley did not know whether either of the two locations had a place for Joel Doe to store his belongings and, in choosing the one alternative, Joel Doe did not tell Dr.' Foley that this location was a problem because he could not store his belongings there. Foley Dep. at 48; 7-17-17 Tr. at 121. 132. Joel Doe testified that, subsequent to October 31, 2016, he did not get dressed in any other area for gym class because he did not have a place to safely secure his belongings. 7-17-17 Tr. at 111; Joel Doe Dep. at 105. Thus, he did not use the single-user areas offered by the, School District’s administration. 133.

Joel Doe could not explain how he would not be adequately protected if a locker was installed in the single-user facility. Joel Doe Dep. at 105-06; 134. Dr. Foley indicated that Joel Doe could give his belongings to the gym teacher, who would have secured his belongings for him. Foley Dep. at 49. 135. Joel Doe has never showered at school and has never seen anyone take a shower at school. Joel Doe Dep. at 73. 136. Joel Doe is unaware of any time that the defendants allegedly violated his right to privacy other than on October 31, 2016. Joel Doe Tr. at 184. 137.

Joel Doe never saw another student’s genitals while changing in the boys’ locker room. 7-17-17 Tr. at 122. He also never saw another student remove his underwear in the locker room. Joel Doe Dep. at 213. ,138. Joel Doe has never had any of his intimate body parts exposed in a common area of the student bathrooms or the locker room. Joel Doe Dep. at ,113, 231-32. 139. In early November 2016, John and Jane Doe met with Dr. Cooper at BASH to discuss the locker room issue. Jane Doe Dep. at 15; John Doe Dep. at 17; 7-17-17 Tr. at 118-19; 7-31-17 Tr. at 114-15. During this conversation, Dr.

Cooper explained the School District’s practice of allowing students to use the facilities with which they identify, and said that if Joel Doe was uncomfortable changing in the locker room with a transgender male student, arrangements could be made for Joel Doe to change in the nurse’s office bathroom or a single-user restroom near the gym. 7-31-17 Tr. at 114-15. 140.

On November 16, 2016, Jane Doe sent an e-mail to the gym teacher in which she indicated that per her and John Doe’s decision, Joel Doe would not be attending gym class until further notice due to “unresolved issues with his safety in reference to the locker room.” Jane Doe Tr. at 18, 19-20; Pis.’ Ex. P-52; 7-31-17 Tr. at 115. Jane Doe also indicated that she had been waiting for information and a “letter” from Dr. Cooper or Dr. Faidley, and had yet to receive the information or the letter despite her requests. Pis.’ Ex. P-52. 141.

When Joel Doe arrived at BASH after his morning at BCTC, instead of going to gym class he went to the assistant principals’ office and asked to speak to Dr. Foley, Dr. Cooper, or any administrator. Joel Doe Dep. at 58. Dr. Foley and Dr. Cooper met with Joel Doe and he told them that he was not to go to class until one of them spoke to his legal guardian. Joel Doe Dep. at 58; John Doe Dep. at 27-28. Dr. Foley, Dr. Cooper, and Joel Doe then engaged in a conference call with Jane Doe. During this conversation, Dr.

Cooper, who had finally heard from Assistant Superintendent Scoboria that the School District was not going to place anything in writing, informed Jane Doe that he was not going to provide her anything in writing. Jane Doe Dep. at 21; Joel Doe Dep. at 56, 57, 58; 7-31-17 Tr. at 115. Dr. Cooper again offered the alternative changing arrangements for Joel Doe. 7-31-17 Tr. at 115. 142. , John and Jane Doe later met with Dr. Faidley and Assistant Superintendent Scoboria to discuss the locker room issue. Jane Doe Dep. at 17, 23, 27; John Doe Dep. at 18,19; Faidley Dep. at 85. During this conversation, Dr.

Faidley asked the Does if the administration had offered alternative arrangements for Joel Doe. Faid-ley Dep. at 86. The Does said that the administration had made such an offer, but the Does did not find the offer acceptable. Faidley Dep. at 86. Dr. Foley indicated that he was not going to remove the transgender student from the locker room. Faidley Dep. at 86. 143. Joel Doe knew from his parents that he could use a single-user bathroom as an alternative arrangement. 7-17-17 Tr. at 119. 144.

If Joel Doe used a single-user bathroom to change for gym, he acknowledged that he could have used his school locker in the hallway to store his belongings. 7-17-17 Tr. at 119. 145. Although Joel Doe continued to participate in gym, a required course at BASH, he did not use the boys’ locker room at BASH to change clothes after October 31, 2016. 7-17-17 Tr. at 110-11, 112; Joel Doe Dep. at 24. He stated that he no longer changed in the locker room because a “girl,” Student A, was in there. 7-17-17 Tr. at1112. 146.

Because Joel Doe did not change clothes for gym class as' required, he only received partial credit for the class. 7-17-17 Tr. atlll. 147. Prior to October 31, 2016, Joel Doe used BASH restrooms approximately once per day. 7-17-17 Tr. at 112-13; Subsequent to October 31, 2016, Joel Doe used the bathrooms approximately two to three times per week. 7-17-17 Tr. at 113. 148. Joel’Doe does not feel comfortable use the multi-user boys’ restrooms because females can use the restrooms. 7-17-17 Tr. at 115. 149.

Joel Doe acknowledges that he could have used the single-user bathroom in the nurse’s office. 7-17-17 Tr. at 113. 150. If Joel Doe had to use a bathroom after October 31, 2016, he would generally use a single-user facility, but if it was an emergency, he would use the boys’ multi-user restroom located in the “700s” hallway because this bathroom was closest to his last period class. 7-17-17 Tr. at 113-14, 121,123; Pis.’ Ex. P-30; Joel Doe Dep. at 18-19. He usually waited until the last period to use the bathroom to the extent he was “holding it in all day.” 7-17-17 Tr. at 123-24. 151.

The 700s hallway multi-user boys’ bathroom contains four urinals and one or two bathroom stalls. Pis.’ Ex. P-30. If Joel Doe was using one of the stalls, he is tall enough to look over the stall’s walls to make eye contact with a student standing at one of the urinals. 7-17-17 Tr. at 114. 152. Joel Doe indicated that when he uses the boys’ bathrooms at BASH, he feels uncomfortable. 7-17-17 Tr. at 115. 153. Joel Doe has never seen any student that he would call a “girl” in a boys’ bathroom. Joel Doe Dep. at 74. 154.

Joel Doe acknowledges that when he used a single-user bathroom, his privacy was protected. 7-17-17 Tr. at 121-22. 155. Joel Doe does not find that the School District allowing him to use a single-user facility is acceptable' because he believes that he has the right to use the boys’ bathrooms and maintain his privacy there from individuals of the opposite biological sex. 7-17-17 Tr. at 115. 156. Joel Doe was unaware of a biological girl ever using the boys’ locker room other than Student A on October 31, 2016. Joel Doe Dep. at 74. 157.

Joel Doe believes that someone who is born a male is always male and that someone who is born a female is always female, regardless of any. sex-change surgery or hormone replacement surgery. Joel Doe Dep. at 87-88, 157-58, 168. He bases his assessment on whether someone is male or female based on how they were born and the reproductive organs that the person has. Joel Doe Dep. at 158-59, 168, 173, 221-22. 158. Joel Doe would be satisfied if only individuals listed as male on their original birth certificates could use the boys’ facilities. Joel Doe Dep. at 229-30.

He main-, tains this position and would not object to an individual listed as male on the individual’s birth certificate being in the locker room or bathroom with him even if this individual had his penis surgically removed and a vagina constructed. Joel Doe Dep. at 85-88,220-21, 229-230. 159. Joe Doe is unopposed to sharing the boys’ locker room with a student who has breasts and if a transgender girl underwent hormone therapy that caused her to develop breasts, he would not object to the transgender girl using the boys’ locker room. Joel Doe Dep. at 233, 234, 235. 160.

Joel Doe does not recognize a transgender boy as male because the transgender boy was born female. Joel Doe Dep. at 86. 161. Joel Doe acknowledges that he cannot tell if someone is biologically a male or if the person is transgender simply by their appearance. Joel Doe Dep. at 161, 233. 162. Joel Doe is unopposed to sharing a bathroom with a transgender female student. 7-17-17 Tr. at 116. Joel Doe is unopposed to sharing a bathroom with a boy who dresses like a stereotypical girl. 7-17-17 Tr. at 115. 163.

Joel Doe has never filed an internal complaint with the School District pursuant to its sexual harassment policy. Joel Doe Dep. at 41. 164. Joel Doe has not seen any doctor, psychologist, psychiatrist, or therapist since encountering Student A in the locker room on October 31, 2016. Joel Doe Dep. at 111. 165. Joel Doe has not received any medical care for any anxiety, embarrassment, or stress. Joel Doe Dep. at 197. 166.

Joel Doe claims that he filed this lawsuit' because a girl viewed him in his underwear in the boys’ locker room and when he went to the School District administration for help they told him that -he had to tolerate it and make it as natural as possible. 7-17-17 Tr. at 85. 167. Joel Doe’s decision about whether he will return to BASH for his senior year depends on how the court resolves the plaintiffs’ motion for a preliminary injunction. 7-17-17 Tr. at 84-85. 168.

Joel Doe is requesting that the' court issue a preliminary injunction so he can continue to use the locker rooms and restrooms provided to males. 7-17-17 Tr. at 116. C. Plaintiff Jack Jones and his Parents, John Jones and Jane Jones 169. Jack Jones is, as of July 11, 2017, at 17-year-old boy who is going into his senior year of high school for the 2017-18 school year. July 11, 2017 Trial Dep. of Jack Jones (“Jack Jones Trial Dép.”) at 4; Jack Jones Dep. at 14. 170.

Jack Jones was a junior student at BASH for the 2016-17 school year, and he intends to complete high school at BASH-Jack Jones Trial Dep. at 4; Jack Jones Dep. at 14,127. 171. During the first week of November 2016, Jack Jones was in the boys’ locker room at BASH and was changing after gym class, Jack Jones Trial Dep. at 17, 18, 22; Jack Jones Dep. at 16, 23, 135, 155-56. After being in the locker room for approximately a minute-and-a-half to two minutes, another student, Student CC, who was standing to his right, tapped him on the shoulder and gestured at him to look behind him.

Jack Jones Trial Dep. at 17-18, 28; Jack Jones Dep. at 16, 17, 20-21, 135-36. Jack Jones turned and saw Student A, a student who he identified as a‘ “girl,” who was wearing a short gray top and short shorts. Jack Jones Dep. at 23; Pis.’ Ex. P-44, PI. Jack Jones’s Resp. to Defs.’ First Set of Interrog. at 2. Student A was standing to the left of him and staring into Student A’s locker. Jack Jones Dep. at 21, 22. 172. Jack Jones did not know Student A’s name, and Student A was not in his gym class. Jack Jones Dep. at 17-18, 29. 173.

At the time that Jack Jones saw Student A, he (Jack Jones) was wearing a shirt and he was in his underwear. Jack Jones Trial Dep. at 18, 22; Jack Jones Dep. at 16,23,135. 174. Upon seeing Student A, Jack Jones, who was at the middle row of lockers in the locker room, moved two or three feet away to an area of the locker room where he believed he was most hidden from Student A. Jack Jones Trial Dep. at 18, 19; Jack Jones Dep. at 23, 25, 27-28. Jack Jones then quickly put on his shorts, and then he saw Student A walk past him and out of the locker room. Jack Jones Trial Dep. at 18; Jack Jones Dep. at 23. 175.

Jack Jones claims that when he saw Student A he was shocked and somewhat humiliated because he quickly moved upon seeing Student A. Jack Jones Trial Dep. at 19. Jack Jones claims that he was also ashamed and embarrassed because he was the one who moved and because he believes that his privacy was violated. Jack Jones Trial Dep. at 19-20; Jack Jones Dep. at 30. 176. Jack Jones did not see Student A’s breasts or genitalia. Jack Jones Dep. at 39. 177. As Student A was moving to‘exit the locker room, Jack Jones overheard a boy yell, “if you don’t have a dick, get the fuck out,” and he heard boys laughing.

Jack Jones Trial Dep. at 20, 30. 178. Jack Jones also heard another boy yell, “if you have a dick, raise your hand,” which caused a bunch of boys to raise their hands. Jack Jones Trial Dep. at 20. • 179. Jack Jones left the locker room and texted his parents that he saw a “girl” in the locker room and shared with them what he heard the other boys saying in there. Jack Jones Trial Dep. at 21-22, 31. 180. Prior to this incident, Jack Jones had already shared with his parents that another student, Student E, who had joined Joel Doe when the group of boys met with Dr.

Foley on October 31, 2016, told him that there was a girl who identifies as a boy in the locker room and some guys went to the office to complain about it. Jack Jones Trial Dep. at 16, 21-22,. 32; Jack Jones Dep. at 30-31, 38,134-35; July 11, 2017 Dep. of John Jones (“John Jones Dep.”) at 8. Student E also indicated to Jack Jones that the- school said- that the boys had to deal with it. Jack Jones Dep. at 135. 181. Jack Jones’ initial text to his parents stated: “Someone yelled if you don’t have a d***,. get the f***. out lol.” Jack Jones Trial Dep. at 31; Intervenor’s Ex. I—1;, July 11, 2017 Dep. of .

Jane Jones (“Jane Jones Dep.”) at 14; John Jones Dep. at 9-10. 182. Jack Jones’s mother, Jane Jones, responded to the text by saying, “Good.” Jack' Jones Trial Dep. at 32, 33; Interve-nor’s Ex. 1-1; Jane Jones Dep. at 15. 183. Jack Jones’s father, John Jones, responded to his son’s text by saying, “Wow.” Jack Jones Trial Dep. at 32, 33; Intervenor’s Ex. 1; John Jones Dep. at 10. 184. In the same text message conversation, Jack Jones told his parents that “[t]he whole thing is screwed up” and “[s]he doesn’t even look like a guy.

She has short purple hair but was in short shorts and had breasts but wate probably in [sic] sports bra.” Jack Jones Trial Dep. at 33; Intervenor’s Ex. 1-1. 185. Jack Jones did not tell Jane Jones that Student A was looking at him. Jané Jones Dep. at 13, 186. Jack Jones only saw Student A in the locker room on this one occasion. Jack Jones Dep. at 18,140-41. 187. Jack Jones never saw Student A in a boys’ bathroom. Jack Jones Dep. at 42. 188. Although Jack Jones had gym class every day for the first semester of the school year, he did not have gym in the second half because he had health class instead.

Jack Jones Dep. at 16-17. 189. According to Jack Jones, BASH students were required to change their clothes for gym class and, if they did not change into appropriate clothes, they would lose points. Jack Jones Trial Dep. at 23, 120-21. Jack Jones believes that if a student does riot pass' gym, the student cannot graduate. Jack Jones Trial Dep. at 23. 190.

When Jack Jones had gym class after the incident, he continued to use the locker room to change even though he changed his usual route through the locker room so he could explore the entire locker room (including the shower area) to see whether a “girl” was in there too. Jack Jones Trial Dep. at 22-23, 29; Jack Jones Dep. at 32-34, 140. After conducting his survey. of the locker room, Jack Jones would quickly change and exit the locker room. Jack Jones Trial Dep. at 23; Jack Jones Dep. at 140. 191.

Jack Jones did not feel that he was unable to use the boys’ locker room to change after seeing Student A in there on one occasion. Jack Jones Trial Dep. at 23, 29,119. 192. Jack Jones never used the shower area of the locker room, which he knew had individual stalls and shower curtains, to change, and that was regardless of whether he saw Student A or another person he believed was a “girl,” in the locker room with him. Jack Jones Dep. at 35,142. 193. Subsequent to seeing Student A in the locker room, Jack Jones still used the boys’ bathrooms, but only if he absolutely had to do so. Jack Jones Trial Dep. at 23.

He tried to hold his bladder as much as possible and he used the restroom approximately once per week. Jack Jones Trial Dep. at 23, 24; Jack Jones Dep. at 42-43. Prior to seeing Student A' in the locker room, he used the restrooms approximately once per day. Jack Jones Trial Dep. at 23, 24; Jack Jones Dép. at 42. 194. When Jack Jones would use the boys’ bathrooms at school after seeing Student A, he would go into the toilet stall and lock the door because he did not want anyone in the bathroom to see him. Jack Jones Dep. at 153-54. 195. Jack Jones claims that he was distracted by holding in his bladder all day.

Jack Jones Trial Dep. at 24. He did not get sick or need medical attention as a result of not using the bathrooms as much as he had previously. Jack Jones Dep. at 43. 196. Jack Jones obtained “good” grades in school (A’s and B’

s) during his sophomore and junior years at BASH. Jack Jones Dep. at 14,130. 197. If Jack Jones had a single-user bathroom at BASH available to him, it would protect his privacy, but still would not satisfy his concerns because he believes he should be able to go into “the male bathroom and male locker room and have [his] privacy protected from girls.” Jack Jones Trial Dep. at 25, 43. 198. Jack Jones was unaware of the availability of single-user bathrooms, including one'not far from the gym, as being available to students, and he did not ask about potentially using them. Jack Jones Dep. at 43-44, 45,119. 199.

Jack Jones is aware that there is a bathroom in the nurse’s office, but he believed he could only use it in an emergency. Jack Jones Dep. at 44. 200. Jack Jones does not shower at BASH and has never seen a boy shower there. Jack Jones Dep. at 47. 201. Jack Jones acknowledged that he could have changed his clothes in an individual toilet stall, but he never used the toilet stalls to change for gym class. Jack Jones Trial Dep. at 9; Jack Jones Dep. at 90. Jack Jones noted that each stall has a door that can be closed and locked. Jack Jones Dep. at 33.

He observed that there are cracks in the door and a person can see above and below the door. Jack Jones Dep. at 33. He has never observed someone peeking through the cracks. Jack Jones Dep. at 33-34. 202. Jack Jones has not viewed other boys’ private areas in the locker room or bathroom other when he saw boys’ buttocks when the boys were “mooning” other boys. Jack Jones Trial Dep. at 9-10; Jack Jones Dep. at 87, 88, 89,154. 203. Jack Jones is unopposed to sharing a locker room with a homosexual boy or a biological boy who dresses like a stereotypical girl. Jack Jones Trial Dep. at 25-26, 47. 204.

Through this litigation, Jack Jones wants policies put in place so that he can go into the male locker room and bathroom and not get viewed by members of the opposite sex. Jack Jones Trial Dep. at 26. 205. Jack Jones defines a male as someone having internal and, external reproductive systems that are consistent with males. Jack Jones Trial Dep. at SO-SO. At bottom, the individual must be designated as male at birth and it does matter if that individual has different anatomy than he has. Jack Jones Trial Dep. at 36, 40. 206.

Jack Jones acknowledges that he could not determine whether someone was designated as male at birth simply by the person’s appearance now. Jack Jones Trial Dep. at 40-42; Jack Jones Dep. at 85,144-45. 207. Jack Jones acknowledged that there could be situations in which a transgender male student uses a restroom or locker room, but he would not know it because he would have no way to' verify the person’s biological sex. Jack Jones Dep. at 79-80. 208. Jack Jones is • unopposed to ■ a transgender girl, even if the transgender girl had modifications to look more like a stereotypical girl, using the boys’ locker room.

Jack Jones Trial Dep. at 45. 209. Jack Jones is .unopposed to students with penises using the girls’ locker room if those students were designated as females at birth; similarly, if a transgender boy had surgery to .construct a penis, Jack Jones believes that transgender boy should use the girls’ locker room. Jack Jones Trial Dep. at 36-37, 39-40,. 45-46, 50. 210. When Jack Jones changes in the locker room, he did so in a more, secluded part of the locker room bec

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