In a lengthy June 18 opinion, a unanimous three-judge panel of the Philadelphia-based Third Circuit Court of Appeals explained its decision the previous month rejecting a key part of the legal challenge by some students and parents to the Boyertown Area School District’s policy of letting transgender students use facilities consistent with their gender identity.
Written by Circuit Judge Theodore McKee, the opinion is a total victory for the school district and its transgender students, upholding the trial court’s refusal to halt the district’s trans-friendly policies while the case is being litigated.
The lawsuit was originally filed in March 2017 by Alliance Defending Freedom (ADF), a Christian law firm specializing in opposing LGBTQ rights, which represents some students at the Boyertown, Pennsylvania, schools who objected to sharing facilities with transgender students. Some of the students’ parents are also plaintiffs.
Citing an incident where one of the plaintiffs encountered a transgender student in a restroom, they claim the district’s policy creates a “hostile environment” for non-transgender students, violating their rights under Title IX of the federal Education Amendments of 1972, the US Constitution, and Pennsylvania’s common law right of privacy.
Title IX provides that students at schools receiving federal financial assistance may not be deprived of equal educational opportunity on account of their sex. The 14th Amendment has, as well, been interpreted to forbid sex discrimination by public institutions, as well as to protect the privacy rights of individual citizens from invasion by the government. Pennsylvania’s common law recognizes unreasonable intrusion on another person’s seclusion as a wrongful invasion of privacy.
The plaintiffs brought their suit despite renovations the district made in school bathrooms and locker rooms to increase individual privacy, including installing several single-user bathrooms to accommodate students uncomfortable using shared facilities.
Last August, US District Judge Edward G. Smith denied the plaintiffs a preliminary injunction to block the school’s policy while the case was litigated, finding they were unlikely to succeed on the merits of their claim and that halting the district’s policy would create harm to transgender students greater than any benefits the plaintiffs would enjoy.
Acknowledging past cases holding that “a person has a constitutionally protected privacy interest in his or her partially clothed body,” McKee wrote, “the constitutional right to privacy is not absolute. It must be weighed against important competing governmental interests. Only unjustified invasions of privacy by the government are actionable.”
Here, Smith found, the school district’s policy served “a compelling state interest in not discriminating against transgender students,” and that its was “narrowly tailored to that interest.”
The Third Circuit panel agreed with this conclusion.
The court found that “transgender students face extraordinary social, psychological, and medical risks and the School District clearly had a compelling state interest in shielding them from discrimination.” Noting expert testimony about the “substantial clinical distress” students could suffer as a result of gender dysphoria, the court found, “The Supreme Court has regularly held that the state has a compelling interest in protecting the physical and psychological well-being of minors. When transgender students face discrimination in schools, the risk to their wellbeing cannot be overstated –—indeed, it can be life threatening.”
McKee also observed that the district’s policy “fosters an environment of inclusivity, acceptance, and tolerance,” and specifically noted the amicus brief filed by the National Education Association, explaining how “these values serve an important educational function for both transgender and cisgender students.”
The court pointed out that the district had gone out of its way to accommodate the privacy concerns of cisgender students with the bathroom and locker room renovations.
As a result, McKee concluded, even if the district’s policy were held to a stand of “strict scrutiny” given the fundamental privacy rights of cisgender students, it would survive because of the compelling state interest involved and the way the district went about implementing it.
Requiring trans students to use only the single-user facilities would not satisfy the state’s compelling interest, but instead “significantly undermine it” since, as the Chicago-based Seventh Circuit Court of Appeals stated last year in the case of Wisconsin transgender high school student Ash Whitaker, “a school district’s policy that required a transgender student to use single-user facilities ‘actually invited more scrutiny and attention from his peers.’” The policy the cisgender students and their parents sought, the court observed, “would very publicly brand all transgender students with a scarlet ‘T,’ and they should not have to endure that as a price of attending their public school.”
The court also noted that “no court has ever” recognized an expansive constitutional right of privacy to the extent demanded by the cisgender the plaintiffs. “School locker rooms and restrooms are spaces where it is not only common to encounter others in various stages of undress, it is expected.” Even the Supreme Court has commented that “public school locker rooms are not notable for the privacy they afford.”
The Third Circuit panel also endorsed Judge Smith’s conclusion that there was no Title IX violation here. As Smith found, “The School District’s policy treated all students equally and therefore did not discriminate on the basis of sex.” Smith had also found that the factual allegations did not rise to the level of a “hostile environment” claim, and the Third Circuit panel agreed. To find a hostile environment, the court would need evidence of “sexual harassment that is so severe, pervasive, or objectively offensive and that ‘so undermines and detracts from the victims’ educational experience that he or she is effectively denied equal access to an institution’s resources and opportunities.’”
McKee pointed out that Title IX regulations do not mandate that schools provide “separate privacy facilities for the sexes,” but rather permissively states that providing separate facilities for male and female students is not a violation as long as the facilities are equal. He observed that the district’s policy “allows all students to use bathrooms and locker rooms that align with their gender identity. It does not discriminate based on sex, and therefore does not offend Title IX.”
The court also agreed with Judge Smith’s conclusion that the state common law privacy claims asserted by the plaintiffs were unlikely to be successful, having found that “the mere presence of a transgender individual in a bathroom or locker room is not the type of conduct that would be highly offensive to a reasonable person,” which is Pennsylvania’s standard.
With the district’s trans-supportive policy now remaining in effect while this case is litigated, the likely next step, if ADF does not slink away in defeat, would be to litigate motions for summary judgment if the two sides agree that there is no need for a trial over disputed facts. ADF, however, is likely to aggressively contest the facts, so it may be that only a trial will resolve this case.
Levin Legal Group of Huntingdon Valley, Pennsylvania, represents the school District. The ACLU of Pennsylvania and the ACLU’s national LGBT & HIV Project, with volunteer attorneys from the law firm Cozen O’Connor, represent the Pennsylvania Youth Congress Foundation, which intervened in the case to protect the interests of Boyertown transgender students.