Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ.

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Seamus Johnson lost her lawsuit against Pitt yesterday, with the federal court dismissing her lawsuit with prejudice. The federal court noted that the lawsuit presented “one central question: whether a university, receiving federal funds, engages in unlawful discrimination, in violation of the United States Constitution and federal and state statutes, when it prohibits a transgender male student from using sex-segregated restrooms and locker rooms designated for men on a university campus. The simple answer is no.”

The court concluded that Pitt’s policy of segregating its bathroom and locker room facilities on the basis of birth sex is “substantially related to a sufficiently important government interest. Specifically, Pitt’s policy is based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex, a justification that has been repeatedly upheld by courts.

The court noted that the U.S. Supreme Court has acknowledged that not all classifications based on sex are constitutionally impermissible: “The heightened review standard our precedent establishes does not make sex a proscribed classification . . . Physical difference between men and women, however, are enduring: ‘[t]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.’” As such, the federal court concluded that “separating students by sex based on biological considerations—which involves the physical differences between men and women—for restroom and locker room use simply does not violate the Equal Protection Clause.”

The court also held that the University’s policy of requiring students to use sex-segregated bathroom and locker room facilities based on students’ birth sex, rather than their gender identity, does not violate Title IX’s prohibition of sex discrimination. To establish a prima facie case of discrimination under Title IX, a plaintiff must allege (1) that he 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. The term “on the basis of sex” in Title IX means nothing more than male and female, under the traditional binary conception of sex consistent with one’s birth or biological sex, the court noted. The court found it convincing that the regulations implementing Title IX explicitly permit educational institutions subject to Title IX to provide separate toilet, locker room, and shower facilities on the basis of sex.

The court also rejected her sex stereotyping claim. Johnson  has not alleged that Pitt discriminated against her because of the way she looked, acted, or spoke. Instead, she alleges only that the University refused to permit her to use the bathrooms and locker rooms consistent with her gender identity rather than her birth sex. Such an allegation is insufficient to state a claim for discrimination under a sex stereotyping theory, the court concluded.

Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ. Docket

Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ.