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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JULIET EVANCHO; ELISSA RIDENOUR;

and A.S., a minor, by and through his parent
and next friend,
Plaintiffs,
vs.
PINE-RICHLAND SCHOOL DISTRICT;
DR. BRIAN R. MILLER, in his official
capacity as Superintendent of the PineRichland School District; and NANCY
BOWMAN, in her official capacity as
Principal of Pine-Richland High School,
Defendants.

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Civil Action No. 2:16-cv-01537

Judge Mark R. Hornak
Electronically Filed

JURY TRIAL DEMANDED

DEFENDANTS MOTION TO DISMISS PURSUANT

TO FED. R. CIV. PRO. 12(b)(6)
Defendants Pine-Richland School District (the District), Dr. Brian R. Miller (Dr.
Miller) and Nancy Bowman (Principal Bowman) (collectively Defendants), by and through
their attorneys, the law firm of Maiello, Brungo & Maiello, LLP, file this Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) and aver as follows:
1.

Plaintiffs are Juliet Evancho, Elissa Ridenour and A.S. (collectively referred

to as Plaintiffs).
2.

Plaintiff Juliet Evancho was born as a male as indicated on a Commonwealth

of Pennsylvania Birth Certificate. She resides in Allegheny County, attends the Districts
High School and is transgender. (Complaint, 12, 18, 21).
3.

Plaintiff Juliet Evancho mostly feels welcome and respected at Pine-Richland

High School. (Complaint, 42).

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4.

Plaintiff Elissa Ridenour was born as a male as indicated on a Commonwealth

of Pennsylvania Birth Certificate. She resides in Allegheny County, attends the Districts
High School and is transgender. (Complaint, 13, 43, 46).
5.

Plaintiff Elissa Ridenour likewise mostly feels welcome and respected at Pine-

Richland High School. (Complaint, 56).

6.

Plaintiff A.S. was born as a female as indicated on a Commonwealth of

Pennsylvania Birth Certificate. He resides in Allegheny County, attends the Districts High
School and is transgender. (Complaint, 14, 61).
7.

Despite a rocky start to his transition to the High School, Plaintiff A.S. now

feels comfortable and safe at the High School and has not faced any transphobic harassment
or bullying at school. (Complaint, 73).
8.

Defendant Dr. Miller is the Superintendent of the District. (Complaint, 16).

9.

Defendant Principal Bowman is the Principal of the Pine-Richland High

School. (Complaint, 17).

10.

Defendant District is a public school district serving over 4,600 students in

kindergarten through twelfth grade who reside in Pine and Richland Townships. It is
organized under the laws and constitution of the Commonwealth of the Pennsylvania.
(Complaint, 15).
11.

Plaintiffs commenced the above-captioned matter by the filing of a Complaint

on or about October 6, 2016.

12.

Plaintiffs Complaint asserts a claim pursuant to Title IX of the Education

Amendments of 1972 (20 U.S.C. 1681 et seq.) (Title IX) as against the District only
(Count I), and a claim by way of 42 U.S.C. 1983 (Section 1983) for rights secured by

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Equal Protection Clause of the Fourteenth Amendment of the United States Constitution as
against all Defendants (Count II).
13.

Plaintiffs above-referenced claims are based upon the Pine-Richlands School

Boards passage of Resolution #2 which states in its entirety: This resolution agreed to by a
majority of the Board of School Directors of the Pine-Richland School District indicates our
support to return to the long-standing practice of providing sex specific facility usage. All
students will have the choice of using either the facilities that correspond to their biological
sex or unisex facilities. This practice will remain in place until such time that a policy may
be developed and approved. (Complaint, 108).
14.

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a

complaint, in whole or in part, for failure to state a claim upon which relief can be granted.
15.

When considering a Rule 12(b)(6) motion to dismiss, the courts role is

limited to determining if a plaintiff is entitled to offer evidence in support of his or her

claims. See Semerenko v. Cendant Corp. 223 F. 3d 165, 173 (3d Cir. 2000).
16.

Mere conclusory statements will not do; a complaint must do more than

allege the plaintiffs entitlement to relief. Fowler v. UPMC Shadyside, 578 F. 3d 203, 210
(3d Cir. 2009).
17.

A complaint must be dismissed for failure to state a claim if it does not allege

enough facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007).
18. [T]he touchstone of the pleading standard is plausibility. Bistrian v. Levi, 696
F. 3d 352, 365 (3d Cir. 2012).

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19.

First, Plaintiffs have filed their Section 1983 claim (Count II) against Dr.

Miller and Principal Bowman in their official capacities only. (Complaint, 16, 17).
20.

Plaintiffs official capacity Section 1983 claims brought against Dr. Miller

and Principal Bowman are indistinct from the same claim asserted against the educational
entity, Pine-Richland School District.
21.

Thus, the Section 1983 claims against the individual defendants, Dr. Miller

and Principal Bowman, should be dismissed with prejudice and the caption amended to
reflect same.
22.

Additionally, Plaintiffs have failed to state a Title IX Claim against the

District upon which relief can be granted, and thus said claim should be dismissed with
prejudice.
23.

Title IX provides that [n]o person in the United States shall, on the basis of

sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial
assistance. 20 U.S. C. 1681(a) (emphasis added).
24.

The term sex, as codified into the Title IX statute and accompanying

regulations, refers to a fixed, binary and genetically-determined sex, based on the nature of
human reproduction and the irrefutable fact that we are a species of males and females.
25.

Title IX also permits separate facilities to be maintained for the sexes. 34

C.F.R. 106.33.
26.

Plaintiffs inappropriately rely upon guidance issued by the Unites States

Department of Education (DOE) and the United States Department of Justice (DOJ) in
the form of a May 13, 2106 Dear Colleague Letter on Transgender Students (2016 DCL)

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indicating those agencies position that the term sex is not limited by the traditional
understanding of the word as male and female, but now includes gender identity.
27.

The 2016 DCL requires public schools to permit transgender male and

transgender female students to use restroom facilities consistent with their gender identify or
face enforcement action in the form of loss of federal educational funding. (Complaint,
128).
28.

The 2016 DCL contravenes congressional intent as related to Title IX and was

issued by the DOE and DOJ without appropriate notice and comment rule-making as
required by the Administrative Procedures Act (5 U.S.C. 706).
29.

Furthermore, Plaintiffs have failed to state an Equal Protection claim upon

which relief can be granted, and thus said claim should be dismissed with prejudice.
30.

The Fourteenth Amendment to the United States Constitution provides that no

state shall deny to any person within its jurisdiction the equal protection of the laws.
31.

Neither the United States Supreme Court nor the Third Circuit Court of

Appeals has recognized transgender as a suspect classification under the Equal Protection
Clause, thus Plaintiffs Equal Protection claim is reviewed under a rational basis standard.
32.

However, even if a heightened standard of review were to apply, the result

would be the same as Resolution #2 is substantially related to the important government

interest of ensuring the privacy of its students to use the restroom outside of the presence of
members of the opposite biological sex.
33.

In support of their Motion to Dismiss, Defendants incorporate by reference

their Brief in Support of Motion to Dismiss which has been filed contemporaneously with
their Motion.

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WHEREFORE, Defendants Pine-Richland School District, Dr. Brian R. Miller and

Nancy Bowman respectfully request that this Honorable Court grant their Motion to Dismiss
Pursuant to Fed. R. Civ. P. 12(b)(6) and dismiss Counts I and II in their entirety and with
prejudice.

RESPECTFULLY SUBMITTED,
MAIELLO, BRUNGO & MAIELLO, LLP

/s/ Christina Lane

Christina Lane, Esquire
Pa. I.D. #83677
cll@mbm-law.net
Alfred C. Maiello, Esquire
Pa. I.D. #00801
acm@mbm-law.net
Michael L. Brungo, Esquire
Pa. I.D. #46555
mlb@mbm-law.net
Roger W. Foley, Jr., Esquire
Pa. I.D. #73936
rwf@mbm-law.net
Gary H. Dadamo, Esquire
Pa. I.D. #93292
ghd@mbm-law.net
Peter J. Halesey, Esquire
Pa. I.D. #313708
pjh@mbm-law.net
(Attorneys for Defendants)

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CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on this 14th day of November, 2016, I have filed
the foregoing Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) with the Clerk of Courts
via the District Court Electronic Case Filing System which will send notification of such filings
to the following counsel of record:
Omar Gonzalez-Pagan, Esquire
Lambda Legal Defense and Education Fund, Inc.
120 Wall Street, 19th Floor
New York, NY 10005
Christopher R. Clark, Esquire
Kara N. Ingelhart, Esquire
Lambda Legal Defense and Education Fund, Inc.
105 West Adams Street, Suite 2600
Chicago, IL 60603
Tracie L. Palmer, Esquire
David C. Williams, Esquire
Kline and Specter, P.C.
1525 Locust Street
Philadelphia, PA 19102

MAIELLO, BRUNGO & MAIELLO, LLP

/s/Christina Lane
Christina Lane, Esquire
Pa. I.D. #83677
Alfred C. Maiello, Esquire
Pa. I.D. #00801
Michael L. Brungo, Esquire
Pa. I.D. #46555
Roger W. Foley, Jr., Esquire
Pa. I.D. #73936
Gary H. Dadamo, Esquire
Pa. I.D. #93292
Peter J. Halesey, Esquire
Pa. I.D. #313708
(Attorneys for Defendants)

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