In recent decades the United States has seen a rise in jurisprudence surrounding the gay community but it was not until the last five to ten years that there has been an exponential increase in cases surrounding transgender rights. The issue of transgender “bathroom rights” rose to the forefront of the media in March 2016 when the North Carolina General Assembly passed the “Public Facilities Privacy & Security Act” better known as “House Bill 2” or “HB2.” Yet, the “battle of the bathrooms” is nothing new to transgender individuals. Prior to North Carolina’s House Bill 2 most people had never thought of bathroom rights for transgendered individuals. State bathroom rights have tended to be something that was not discussed and was most certainly not in the national spotlight. Now bathroom rights is a hot button issue and research has shown many states enacting similar bills to North Carolina. When analyzing various case law on this subject it appears as if most students file under Title IX as a way to try and protect their right to use the restroom of their choice, but very few have filed any constitutional claims, until recently. This paper will analyze state actions on transgender bathroom rights before examining two recent cases from the Western District of Pennsylvania which made Fourteenth Amendment claims.
II. BATHROOM RIGHTS AND HOW THEY VARY STATE-TO-STATE
Many states have adopted laws which provide transgender individuals the choice to use the bathroom which conforms with their gender identity versus their “biological gender” however these laws are not foolproof. Due to the fact that transgender rights have yet to be read into the Constitution their rights vary state by state. This means that a transgender child in one state may not face legislation that denies them the ability to use the bathroom of their choice while a child in a juxtaposed state may be forced to use the bathroom that reflects their biological sex. Therefore, a child who attends school in New Jersey would have state protection against discrimination and harassment whereas a child in Pennsylvania would not. This truly effects young children and students who suffer from gender dysphoria along with the other “normal” transitions of growing up. It is for these reasons along with the discrimination that these individuals face on a daily basis that there needs to be a constitutional protection, and that the decision should not be left to the states to experiment with and decide.
North Carolina’s General Assembly, in a special one-day hearing on March 23rd 2016, passed the “Public Facilities Privacy & Security Act, 2016 N.C. Sess. Laws 3” which amongst other things stated that “multiple occupancy bathrooms and changing facilities managed by public agencies and local boards of education must be “designated for and only used by persons based on their biological sex.” The state’s passage of this bill has largely been seen as a response to Charlotte’s Ordinance 7056 “which guaranteed non-discrimination of gender in public accommodations or hired vehicles” and has garnered a great deal of criticism and backlash. Some of the biggest and most common criticisms have been the “lack of enforcement guidelines, penalties, rushed composition and passing, lack of dialogue, overreach by government, and potential threats to the safety of transgendered individuals.”
The law that was passed on North Carolina sadly is not an outlier when it comes to state legislation and transgender bathroom rights. The National Center for Transgender Equality tracked all state level bills that were introduced in the 2016 legislative session and that contained provisions that the Center believes targets transgender individuals. As of April 6, 2016 the Center was actively tracking forty-nine bills, thirty-two of these bills dealt with bathroom access and twelve of them were still being actively considered. The remaining bills which had been tracked had died in committee or had been put on hold. The Center found that sixty-nine percent of both active and inactive bills stipulated that bathrooms had to be separated according to biological sex and not gender identity; one fifth of those bills did not require separation and were going to leave the decision to either businesses, schools, or the establishment. Another issue brought up pursuant to all of this legislation is how each state defines a person’s sex. The table below demonstrates that the United States is split as to how to define a person’s sex into six separate categories.
This illustrates an interesting conundrum, if the states themselves cannot come to a consensus on how to define a person’s sex the question then becomes, how can they pass a law which focuses on it? The National Center for Transgender Equality lists states who have legislation regarding bathroom regulation and demonstrate the severity of this problem. Kansas has two bills which are inactive, House Bill 2737 and Senate Bill 513; however Kansas’s Senate Resolution 1798 which has passed in the Senate “[e]ncourages schools to disregard the federal government's guidance on inclusion of transgender students, and urges US Congress to investigate and withhold funding from the Department of Education because of the guidance”. Michigan’s House Resolution 0264, which was referred to the House Education Committee, “[u]rges the State Board of Education to reject their proposed guidance on making LGBTQ students safe and supported” while Michigan’s House Bill 5717, which was referred to Committee on Government Operations, would require “schools and government buildings to segregate restrooms according to birth certificates or state ID.” Mississippi’s House Bill 1523 which was signed into law creates “sweeping exemptions allowing people and businesses to discriminate against transgender people and same-sex couples based on their religious or moral beliefs.” These bills are only a few of the many that are being proposed and/or passed throughout the nation. This helps demonstrate the need for Constitutional protection for trans-individuals.
An interesting turn of legislation arose out of South Dakota, a traditionally conservative state, where the governor vetoed a bill which would “impose statewide standards on ‘every restroom, locker room, and shower room located in a public elementary or secondary school.’ It removes the ability of local school districts to determine the most appropriate accommodation for their individual students and replaces that flexibility with a state mandate.” Twelve states and the District of Columbia have addressed discrimination against students based on both sexual orientation and gender identity: California (enacted in 2002), Colorado (2008), Connecticut (2001/2011), District of Columbia (2001), Illinois (2010), Iowa (2007), Maine (2005), Massachusetts (2002/2012), Minnesota (1993), New Jersey (2002), Vermont (2001/2007),Washington (2002/2009) and Oregon (2007). One state, Hawaii, uses regulations to prohibit discrimination based on both sexual orientation and gender identity. However, sadly these state protections are still not enough as this guarantees a trans-child’s rights on the luck of their birth. In simpler terms a child who identifies as trans-gender is only guaranteed rights if they were fortunate enough to be born in a state which provides this type of protection. If they were born in a state which does not guarantee these rights then they are left with little to no legal recourse.
III. THE EVOLUTION OF WESTERN PENNSYLVANIA CASE LAW
The Third Circuit has yet to hear a case concerning trans-gender bathroom rights under the Fourteenth Amendment, however courts within the Circuit have heard these arguments. Evancho v. Pine-Richland School District, heard in the Western District of Pennsylvania in February of this year held that the plaintiff’s motion for preliminary injunction was granted, not under a Title IX claim, but rather under their Equal Protection claim. In this case a public high school attempted to pass a resolution which would require students to “use either unisex bathrooms or the school bathrooms of their “biological sex.”” In other words the school had adopted a policy which required students to use a restroom which “turns exclusively on the then-existing presence of a determinate external sex organ, no matter what other biological sex or gender markers may exist.”
The court found that the school district was treating the transgendered students differently solely based on their gender identity and therefore concluded that Resolution 2 discriminated against the plaintiffs due to their transgendered status. Furthermore the court held that just “as other courts have recently concluded, for these analytical purposes, that discrimination based on transgender status in these circumstances is essentially the epitome of discrimination based on gender nonconformity, making differentiation based on transgender status akin to discrimination based on sex for these purposes.”
This case is a deviation from the decision in Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Educ. where the Western District of Pennsylvania dismissed the plaintiff’s complaint for failure to present a plausible claim for relief as a matter of law only two years earlier. In this decision the Western District of Pennsylvania found that regardless of how “gender and gender identity are defined, the law recognizes certain distinctions between male and female on the basis of birth sex” and the court therefore concludes that “while the Plaintiff alleges that he has held himself out as “male” at all relevant times, he also alleges that, when he applied to UPJ, he stated that he was a female and that he has failed to provide the school with requested documentation . . . to change the school records to reflect that his sex is male rather than female.” It was for these reasons the court held that the plaintiff failed to state a claim for relief under the Equal Protection Clause of the Fourteenth Amendment.
Evancho and Johston begin to illustrate how the Third Circuit may decide a Fourteenth Amendment claim brought by a transgender student. In Evancho the students in question succeeded by presenting sufficient evidence of an Equal Protection violation and the Western District of Pennsylvania found that “discrimination based on transgender status in these circumstances is essentially the epitome of discrimination based on gender nonconformity, making differentiation based on transgender status akin to discrimination based on sex for these purposes”, whereas two years earlier this decision may have fallen more in line with Johnston.  In Johnston the Western District of Pennsylvania found that both the Third Circuit and the Supreme Court of the United States have yet to recognize transgender as a “suspect classification” under the Equal Protection Clause and therefore applied the rational basis standard. The future of transgender students’ bathroom rights is still murky and unclear throughout the nation, however New Jersey and the Western District of Pennsylvania are trending towards granting transgender students’ the right to choose the bathroom which conforms with their identity, be it through state legislation, such as New Jersey, or case law, such as in the Western District of Pennsylvania.
*Staff Editor Rutgers Journal of Law and Public Policy; JD Candidate 2018 Rutgers Law School
 See Public Facilities Privacy & Security Act, 2016 N.C. ALS 3, 2016 N.C. Sess. Laws 3, 2016 N.C. Ch. 3, 2015 N.C. HB 2; see also United States v. North Carolina, 192 F. Supp. 3d 620 (M.D.N.C. 2016).
 See Rachel Moffitt, Note: Keeping the John Open to Jane: How California’s Bathroom Bill Brings Transgender Rights Out of the Water Closet, 16 Geo. J. Gender & L. 475 n. 57 listing twelve states plus the District of Columbia which address discrimination against students based on sexual orientation and gender identity.
 See Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Edu., 97 F.Supp. 3d 657 (W.D. Pa. 2015); see also Lopez v. City of New York, 2009 U.S. Dist. LEXIS 7645 (S.D. N.Y. Jan. 29, 2009) (concluding that the plaintiff’s status as transgendered did not qualify her as a member of a protected class and explaining that the court could find no “cases in which transgendered individuals constitute a ‘suspect’ class”); see also Know Your Rights: Transgender People and the Law, , ACLU, https://www.aclu.org/know-your-rights/transgender-people-and-law (last visited October 5, 2017) stating that the following states have laws that specifically protect transgendered students from harassment and discrimination in public schools; Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New York, North Carolina, Oregon, Vermont, Washington, and the District of Columbia. However, these laws vary in the scope of their protection.
 Know Your Rights: Transgender People and the Law, ACLU, https://www.aclu.org/know-your-rights/transgender-people-and-law (last visited October 5, 2017).
 See United States v. North Carolina, 192 F. Supp. 3d at 622.
 See Zack Weaver, The Many Effects of and Responses to HB2, , The Carolinian (June 17, 2016), https://carolinianuncg.com/2016/06/17/the-many-effects-of-and-responses-to-hb2/.
 See Leah Libresco, Seven Other States Are Considering Restricting Bathrooms for Transgender People, FiveThirtyEight (April 6, 2016, 4:50 PM), http://fivethirtyeight.com/features/with-north-carolina-seven-other-states-are-considering-restricting-bathrooms-for-transgender-people/.
 Id. (citing graph "How do states define a person's sex?").
 Id. (referencing Michigan legislation).
 Id. (referencing Mississippi legislation).
 See Greg Botelho, South Dakota Governor Vetoes Transgender Bathroom Bill, CNN (March 2, 2016), http://www.cnn.com/2016/03/01/us/south-dakota-transgender-bathroom-bill/; see also Alex Ura, Bathroom Fears Flush Houston Discrimination Ordinance, Texas Trib., (Nov. 3, 2015), https://www.texastribune.org/2015/11/03/houston-anti-discrimination-ordinance-early-voting/.
 See Rachel Moffit, Note: Keeping the John Open to Jane: How California’s Bathroom Bill Brings Transgender Rights Out of the Water Closet, 16 Geo. J. Gender & L. 475 n. 57.
 Evancho v. Pine-Richland Sch. Dist., 2017 U.S. Dist. LEXIS 26767 (W.D. Pa. Feb. 27, 2017)
 Id. at *13.
 Id. at *14.
 Id. at *27.
 Id. at *27-28.
 Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Edu., 97 F.Supp. 3d 657 (W.D. Pa. 2015)
 Id. at 671, 672.
 Evancho v. Pine-Richland Sch. Dist., 2017 U.S. Dist. LEXIS 26767, *27-28 (W.D. Pa. Feb. 27, 2017)
 Johnston v. Univ. of Pittsburgh of the Commonwealth Sys. of Higher Edu., 97 F.Supp. 3d 657 (W.D. Pa. 2015)