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IN the UNITED STATES DISTRICT COURT for the EASTERN DISTRICT of PENNSYLVANIA : JOEL DOE, a Minor, by and Through His Guardians

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IN the UNITED STATES DISTRICT COURT for the EASTERN DISTRICT of PENNSYLVANIA : JOEL DOE, a Minor, by and Through His Guardians Case 5:17-cv-01249-EGS Document 59 Filed 08/10/17 Page 1 of 46 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA : 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, : No. 17-cv-1249-EGS : v. : : BOYERTOWN AREA SCHOOL DISTRICT; : DR. RICHARD FAIDLEY; DR. BRETT COOPER: and DR. E. WAYNE FOLEY, : : Defendants. : DEFENDANTS’ SECOND SET OF PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION The Boyertown Area School District (the “District”), Dr. Richard Faidley, (“Faidley”), Dr. Brett Cooper (“Cooper”), and Dr. E. Wayne Foley (“Foley”) (together “Defendants”), by and through their attorneys, Levin Legal Group, P.C., hereby submit the following proposed findings of fact and conclusions of law regarding the Plaintiffs’ Motion for Preliminary Injunction. This set has been filed to supplement the set that was filed prior to the Preliminary Injunction hearing. Case 5:17-cv-01249-EGS Document 59 Filed 08/10/17 Page 2 of 46 FINDINGS OF FACT 1. Defendant Faidley was Superintendent of the District from August 1, 2013 through July 17, 2017. (Faidley resigned as Superintendent of the District after being appointed as Superintendent of the Wilson School District on Monday evening, July 17, 2017, effective July 18, 2017.) Faidley Dep. Tr., p. 12; July 31 Tr., p. 107. 2. Defendant Cooper has been principal of Boyertown Area Senior High School (“BASH”) since 2009. July 31 Tr., p. 106. 3. Defendant Foley is an Assistant Principal at BASH and is currently assigned to the senior class of 2018. Cooper Dep. Tr., p. 22. 4. In May 2016, the U.S. Departments of Education and Justice issued a “Dear Colleague Letter” (“the 2016 Letter”) stating that transgender students must be allowed to use the restrooms and locker rooms aligned with their gender identity. July 31 Tr., p. 109; Faidley Dep. Tr., pp. 24-25. 5. Based on the 2016 Letter and communications with the School District’s solicitor, since the beginning of the 2016-2017 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. This practice and its implementation have not been reduced to writing. July 31 Tr., pp. 108-10, 132-33; Faidley Dep. Tr., pp. 24-25, 34; Exh. P-49. 2 Case 5:17-cv-01249-EGS Document 59 Filed 08/10/17 Page 3 of 46 6. At least 41 Pennsylvania public school district have adopted official school board policies referencing transgender students or gender identity. The majority prevent discrimination against transgender students in the provision of school services or through bullying. At least 12 districts have official policies permitting transgender students to use restrooms and/or locker rooms aligned with their gender identity. See list of policies, attached hereto as Exhibit 1.1 7. By the end of the 2016-2017 school year, permission had been granted to two transgender males and one transgender female to use restrooms aligned with their gender identity. One transgender male also requested, and was given, permission to use the boys' locker room. Cooper Dep. Tr., p. 86-91. 8. Also during the 2016-2017 school year, three other transgender male students requested permission to use different first names aligned with their gender identity, and to be addressed by male pronouns. However, none of these students requested to use restrooms and/or locker rooms aligned with their gender identity. Cooper Dep. Tr., p. 94-103. 1 The court may take judicial notice of these policies, which were adopted by resolutions of Pennsylvania school boards. See 42 Pa. C.S. § 6107 (“The ordinances of municipal corporations of this Commonwealth shall be judicially noticed.”); Derry Tp. v. Swartz, 61 Pa. D. & C.2d 670, (1973) (holding that school district resolutions “warrant comparable notice” as ordinances of municipal corporations). 3 Case 5:17-cv-01249-EGS Document 59 Filed 08/10/17 Page 4 of 46 9. Before a transgender student is granted permission to use the restrooms and/or locker room aligned with his or her gender identity, several conversations occur between the student and his or her guidance counselor regarding the student’s situation and intentions. Permission is not granted automatically. July 31 Tr., p. 144, 148; Faidley Dep. Tr., p. 23. 10. 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 educational program or activities of the district. There have been no student or employee protests or walkouts regarding the practice. BASH students have been generally accepting of their transgender classmates. July 31 Tr., p. 116. 11. When a transgender student at BASH requests and is granted permission to use the restrooms and/or locker rooms aligned with their gender identity, they are no longer permitted to use the facilities of their biological sex. July 31 Tr., p. 112. 12. Any BASH student who enters a restroom or locker room of the opposite biological sex without prior permission is subject to discipline. This has occurred approximately five to ten times during Dr. Cooper’s tenure as principal at BASH. July 31 Tr., p. 112. 4 Case 5:17-cv-01249-EGS Document 59 Filed 08/10/17 Page 5 of 46 13. In 2016, the School District reconstructed the showers in the locker rooms at the high school to remove gang showers and replace them with individual shower stalls with curtains. Cooper Dep. Tr., p. 44. 14. As part of ongoing renovations, BASH has added several bathrooms for both students and staff – both multi-user and single user – for the upcoming 2017-2018 school year. The additions bring the number of single-user bathrooms available to students to eight. July 31 Tr., pp. 107-08, 118-122; Faidley Dep Tr., pp. 16-17; Exhs. D-53, D-54. 15. All of the multi-user restrooms at BASH have individual toilet stalls, each with a locking door for privacy. July 31 Tr., pp. 118-19. 16. Four or the single-user restrooms for students will have lockers added for the 2017-2018 school year so that students changing in those restrooms can store their belongings. July 31 Tr., pp. 148-49. 17. The boys’ locker room at BASH has individual bathroom stalls and shower stalls. Joel Doe Tr., p. 202-03; Jack Jones Dep. Tr., p. 34-35; July 31 Tr., pp. 125-26; Faidley Dep Tr., p. 20. 18. The girls’ locker room at BASH has individual bathroom stalls and individual shower stalls with curtains. Smith Dep. Tr., p. 48; Roe Dep. Tr., p. 40; July 31 Tr., pp. 125-26; Faidley Dep Tr., p. 19. 5 Case 5:17-cv-01249-EGS Document 59 Filed 08/10/17 Page 6 of 46 19. No transgender has requested permission to shower in either of the BASH locker rooms, and Dr. Cooper is not aware of any transgender student ever showering in either of the BASH locker rooms. July 31 Tr., p. 125. 20. In addition to the gym locker rooms, there are “team” locker rooms near the gyms. These locker rooms have lockers, toilet stalls and showers. July 31 Tr., pp. 123-24. 21. The School District will permit the Plaintiff students and any other student who desires because of privacy concerns to use these team locker rooms. July 31 Tr., p. 125, 141-42. 22. There is no need for a student using the team locker rooms to walk into or through the gym locker rooms. July 31 Tr., p. 124. 23. The School District has hired an architectural firm to develop plans to increase privacy in the restrooms and locker rooms at BASH. July 31 Tr., pp. 126- 27; Exh. D-36. 24. In February 2017, following the inauguration of President Trump, the U.S. Departments of Education and Justice issued another “Dear Colleague Letter” (the “2017 Letter”) rescinding the guidance in the 2016 Letter. 25. The District has anti-discrimination policies and a sexual harassment policy. Those policies contain complaint procedures. The Plaintiffs never filed any internal complaints in accordance with those policies. Doe Dep. Tr., p. 41. 6 Case 5:17-cv-01249-EGS Document 59 Filed 08/10/17 Page 7 of 46 26. The District has not discriminated against any of the Plaintiffs. The District is dedicated to ensuring a nondiscriminatory environment in every respect for all those who enter District buildings. Exh. P-49. 27. No injunction is needed to protect the privacy concerns of the Plaintiff students as single-user bathrooms may be used by them and alternative locker rooms are available for them. July 31 Tr., p. 149; Faidley Dep. Tr., pp. 63-66. Plaintiff Joel Doe (“Doe”) 28. Doe was in the 11th grade at BASH during the 2016-2017 school year. July 17 Tr., pp. 81-82. 29. During the 2016-2017 school year, Doe attended a physical education class one day out of a six-day scheduling cycle. July 17 Tr., p. 84. 30. Doe has never taken a shower at school, and has never seen anyone take a shower at the school. Joel Doe Tr., p. 73. 31. On October 31, 2016, Doe witnessed Student A, a transgender boy, changing in the boys’ locker room at BASH. According to Doe, Student A was wearing shorts and a sports bra. July 17 Tr., p. 85, 88. 32. Doe was partially undressed, i.e., in his underpants and a shirt, and in the process of changing into his gym clothes when he noticed Student A.
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