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Federal Appeals Court Renders Decisive Win for Transgender Students in Pennsylvania

Posted on: July 1st, 2018 by Art Leonard No Comments

A unanimous three-judge panel of the Philadelphia-based 3rd Circuit U.S. Court of Appeals issued an extensive written opinion on June 18, explaining the decision it had announced on May 24 to reject a legal challenge by some students and parents to the Boyertown School District’s decision to let transgender students use facilities consistent with their gender identity.  The opinion, written by Circuit Judge Theodore McKee, is a total victory for the school district and its transgender students, upholding the trial court’s refusal to enjoin the District’s trans-friendly policies while the case is being litigated.  Doe v. Boyertown Area School District, 2018 U.S. App. LEXIS 16323, 2018 WL 3016864.

This lawsuit was originally filed in March 2017 by Alliance Defending Freedom (ADF), the Christian law firm that specializes in opposing policies protective of LGBT rights, representing some students at the Boyertown, Pennsylvania, schools, who objected to sharing facilities with transgender students. Some of the students’ parents or guardians are also plaintiffs in the case.  Citing an incident where one of the plaintiffs actually encountered a transgender student in a restroom, they claim that the District’s policy creates a “hostile environment” for the non-transgender students, violating their rights under Title IX, the Constitution, and the Pennsylvania common law right of privacy.

Title IX is a federal statute that provides that students at schools that receive federal financial assistance may not be deprived of equal educational opportunity on account of sex. In addition, the 14th Amendment has 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 a legal theory of unreasonable intrusion on the seclusion of another as a wrongful invasion of privacy.

The plaintiffs in this case argue that their equality and privacy rights were abridged by the School District’s policy allowing transgender students to use facilities consistent with their gender identity. The District undertook renovations of restroom and locker room facilities to increase individual privacy, and  has provided several single-user restrooms at the high school to accommodate any students who might feel uncomfortable using shared facilities to relieve themselves or change clothes.

U.S. District Judge Edward G. Smith issued a ruling last August denying a preliminary injunction that the plaintiffs requested to block the school’s policy while the case was litigated. Judge Smith found that the plaintiffs were unlikely to succeed on the merits of their claim, and that granting the injunction would cause more harm to transgender students than any benefit to the plaintiffs.

McKee began his analysis by discussing the plaintiffs’ constitutional privacy claim. He acknowledged past cases holding that “a person has a constitutionally protected privacy interest in his or her partially clothed body,” but, he 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.”  In this case, District Judge Smith had found that the Boyertown School District’s policy served “a compelling state interest in not discriminating against transgender students,” and that the policy was “narrowly tailored to that interest.”  The 3rd 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.” The court described expert testimony about the “substantial clinical distress” students could suffer as a result of gender dysphoria, which “is particularly high among children and may intensify during puberty.  The Supreme Court has regularly held that the state has a compelling interest in protecting the physical and psychological well-being of minors,” McKee continued.  “When transgender students face discrimination in schools, the risk to their wellbeing cannot be overstated – indeed, it can be life threatening.  This record clearly supports the District Court’s conclusion that the School District had a compelling state interest in protecting transgender students from discrimination.”

The court also observed that the challenged 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.” Thus, the policy benefits not only transgender students but “it benefits all students by promoting acceptance.”

The court also pointed out that the District had gone out of its way to accommodate the privacy concerns of cisgender students by renovating the restrooms and locker rooms to enhance privacy and by making single-user restrooms available. “To the extent that the appellants’ claim for relief arises from the embarrassment and surprise they felt after seeing a transgender student in a particular space,” wrote McKee, “they are actually complaining about the implementation of the policy and the lack of pre-implementation communication.  That is an administrative issue, not a constitutional one.”

Thus, the court concluded, even if the policy is subject to “strict scrutiny” because it may involve a fundamental privacy right, it survives such scrutiny because of the compelling state interest involved and the way the District went about implementing it. The court observed that requiring the transgender students to use the single-sex facilities would not satisfy the state’s compelling interest, but would actually “significantly undermine it” since, as the 7th Circuit Court of Appeals stated last year in the case of 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.’”  McKee observed that “adopting the appellants’ position 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.”

Furthermore, the court pointed out, the District’s policy “does not force any cisgender student to disrobe in the presence of any student – cisgender or transgender,” since the District has provided facilities “for any student who does not feel comfortable being in the confines of a communal restroom or locker room.” The renovation included “privacy stalls” and single-user facilities “so that any student who is uneasy undressing or using a restroom in the presence of others can take steps to avoid contact.”

But, said the court, it had never recognized an expansive constitutional right of privacy to the extent demanded by the plaintiffs in this case, and “no court has ever done so.” “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.”  So the court was unpersuaded that the plaintiffs’ demand in this case had any support in constitutional privacy law.

The 3rd 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.”  Judge Smith had also found that the factual allegations did not rise to the level of a “hostile environment” claim, and the 3rd Circuit panel agreed with him.

Judge McKee pointed out that the Title IX regulations upon which plaintiff was relying do not mandate that schools provide “separate privacy facilities for the sexes,” but rather state permissively that providing separate facilities for male and female students will not be considered a violation of Title IX provided the facilities are equal. Furthermore, in order 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.’”  The plaintiffs’ allegations in this case came nowhere near meeting that standard.

Furthermore, the denial of equal access must be based on sex to violate Title IX. “The appellants have not provided any authority to suggest that a sex-neutral policy can give rise to a Title IX claim,” wrote Judge McKee.  “Instead, they simply hypothesize that ‘harassment’ that targets both sexes equally would violate Title IX; that is simply not the law.” He observed that the School 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 School District argued in response to the plaintiffs’ arguments that “barring transgender students from using privacy facilities that align with their gender identity would, itself, constitute discrimination under a sex-stereotyping theory in violation of Title IX.” This was the argument accepted by the 7th Circuit in Ash Whitaker’s lawsuit, and Gavin Grimm’s continuing lawsuit against the Gloucester County, Virginia, school district under Title IX, also advancing this theory, recently survived a motion to dismiss in the federal district court there.

But, wrote McKee, “We need not decide that very different issue here,” although he characterized the 7th Circuit’s decision in Whitaker’s case as “very persuasive” and said, “The analysis there supports the District Court’s conclusion that appellants were not likely to succeed on the merits of their Title IX claim.”

The court also agreed with Judge Smith’s conclusion that separate state tort law 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 the standard for the tort of “intrusion upon seclusion” in Pennsylvania. The court also approved Smith’s finding that denying the preliminary injunction would not cause irreparable harm to the plaintiffs, as the District has taken reasonable steps to protect their privacy.

Thus, the District’s trans-supportive policy will remain 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 parties agree that there is no need for a trial over disputed facts.  However, ADF is likely to sharply contest the facts, so it may be that an actual trial is needed to resolve this case.

Levin Legal Group of Huntingdon Valley, Pennsylvania, represents the School District, and the ACLU of Pennsylvania and the ACLU’s national LGBT Rights 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 transgender students in the Boyertown District.

Federal District Court Denies Preliminary Injunction Requiring School District to Segregate Restroom and Locker Facilities by Biological Sex of Students

Posted on: December 31st, 2017 by Art Leonard No Comments

 

Accepting a report and recommendation from U.S. Magistrate Judge Jeffrey T. Gilbert, U.S. District Judge Jorge L. Alonso ruled on December 29, 2017, that a group of parents and cisgender students are not entitled to a preliminary injunction blocking Illinois’s Township High School District 211 from allowing transgender students to use restrooms and locker rooms consistent with their gender identity. Students and Parents for Privacy v. United States Department of Education, 2017 U.S. Dist. LEXIS 213091 (N.D. Ill., E.D.).

The dispute grew out of prior legal action by a transgender girl at William Fremd High School in Palatine, Illinios, a suburb of Chicago, seeking to use the girls’ facilities. During the Obama Administration, the U.S. Education Department responded to the student’s complaint by negotiating a settlement agreement with the school district under which Student A, as she was identified, would be allowed to use these facilities.  The school district’s willingness to settle turned on a formal Guidance issued by the U.S. Education and Justice Departments construing Title IX to require such a policy.

Reacting to the settlement, an ad hoc group of parents of students at Fremd High School, together with some girls who attend the high school, brought this suit in May 2016, represented by Alliance Defending Freedom, asserting that the girls had a constitutional and statutory right not to have “biological boys” present in their restroom and locker room facilities where they could see girls in a state of undress. The lawsuit targeted the U.S. Departments of Education and Justice for issuing the Guidance and negotiating the settlement.  The school district was also named as a defendant.  Student A, together with two other transgender students in the district and their parents, were granted intervenor status as defendants.

Magistrate Judge Gilbert, to whom the motion for preliminary injunction had been referred by Judge Alonso, issued his report on October 18, 2006, concluding that plaintiffs were unlikely to prevail on their claims, and recommending that the motion be denied. Plaintiffs filed objections with Judge Alonso.

While the objections were pending there were several developments significantly affecting the case. Donald J. Trump was elected president a few weeks after the Magistrate Report was issued, and he then appointed new leadership to the two Departments after his term began on January 20, 2017.  The two Departments then jointly withdrew the Obama Administration Title IX Guidance, opining that it had not been properly issued and that the matter required more study, but not taking any position on whether transgender students had such protection under Title IX, commenting that these issues should be decided at the local level.  Thus, the Trump Administration was, at least as of then, “neutral” on the question, although since then Attorney General Sessions and the Justice Department have gone on record as opposing an expansive interpretation of Title IX to embrace gender identity (and sexual orientation) discrimination claims.

However, shortly after the withdrawal of the Guidance, the 7th Circuit Court of Appeals ruled in a similar case, Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017) (petition for certiorari pending), that Title IX does extend to gender identity discrimination claims, and upheld an injunction ordering a Wisconsin school district to allow a transgender boy to use the boys’ restroom facilities at a public high school.

The Trump Administration actions mooted the part of the lawsuit against the federal government defendants, as the policy the plaintiffs are challenging was no longer federal executive branch policy. Thus, the plaintiffs agreed to drop the federal defendants from the case.  Also, because Student A has graduated, the plaintiffs’ specific objection to District 211’s agreement with the Education Department concerning facilities access for that student was mooted as well.  However, Intervenor Students B and C and their parents, and possibly other transgender students in District 211, would present the same access issues, so the plaintiffs’ claims against the District under Title IX and the Constitution continue so long as the District does not disavow the access policy to which it had agreed.

In essence, Plaintiffs’ Title IX complaint relies on a long-standing Title IX regulation that authorizes schools to maintain sex-separate restroom and locker room facilities, provided that the facilities are comparable in scope and quality. Plaintiffs argue that this authorization of sex-segregated facilities recognizes the privacy concerns of the students (and their parents), and that requiring students to have to share such facilities with transgender students of a different “biological” sex contradicts those privacy concerns.  The Magistrate had rejected this argument in October 2016, and the 7th Circuit’s Whitaker decision subsequently confirmed the Magistrate’s understanding of this issue.

Wrote Judge Alonso, “Discrimination against transgender individuals is sex discrimination under Price Waterhouse, the 7th Circuit explained, because ‘by definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth.’  Following Price Waterhouse and its progeny, the Court reasoned that a ‘policy that requires an individual to use a restroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance which in turn violates Title IX.  Providing a gender-neutral alternative was insufficient to relieve the school district from liability under Title IX, the Seventh Circuit explained, because it was ‘the policy itself which violates the Act.”

The plaintiffs tried to distinguish the Whitaker case because it addressed only restrooms, not locker rooms, and because, they insisted, the decision was so “astonishingly wrong” that its reasoning undercuts its “worth even as persuasive authority.”  The problem with that, of course, is that Illinois is in the same 7th Circuit as Wisconsin, so Whitaker is not just persuasive authority; it is binding on Judge Alonso.

The judge insisted that nothing in Whitaker “suggests that restrooms and locker rooms should be treated differently under Title IX or that the presence of a transgendered student in either, especially given additional privacy protections like single stalls or privacy screens, implicates the constitutional privacy rights of others with whom such facilities are shared.  Plaintiffs’ critiques notwithstanding,” he continued, “Whitaker reflects a straightforward application of the long-standing line of sex stereotyping decisions, fully in line with the Supreme Court’s guidance on sex discrimination claims.”  Thus, under Whitaker, plaintiffs could not meet the first test for preliminary injunctive relief: showing the probability that they would prevail on the merits of their claim.  Judge Alonso devoted several paragraphs to explaining why the plaintiffs’ attempts to distinguish or disparage Whitaker were unavailing in meeting their burden under the motion.

“Furthermore,” he wrote, “even if Plaintiffs had shown a likelihood of success on the merits, they would still not be entitled to a preliminary injunction because they have not shown they are likely to suffer irreparable harm in the absence of an injunction, or that they lack an adequate remedy at law in the event that they ultimately succeed on their claims.” Indeed, as far as demonstrating harm goes, “the only specific harm to which they point is the risk of running late to class by using alternate restrooms to avoid sharing with a transgender student and the ‘embarrassment, humiliation, anxiety, fear, apprehension, stress, degradation , and loss of dignity’ allegedly felt by Student Plaintiffs arising from such sharing.”  The Magistrate [Judge Gilbert] had found that these were insufficient to establish irreparable injury, because courts routinely award monetary damages for emotional distress, and “the risk of being late to class has not been shown to have any meaningful impact on Student Plaintiffs’ education.”

Judge Alonso considered it worth nothing that the District’s practice of letting transgender students use appropriate facilities had been going on for nearly three years when this lawsuit was filed, but “either Student Plaintiffs did not notice that transgender students were using restrooms consistent with their gender identity, or they knew and tolerated it for several years,” as no examples of actual incidents were proffered in support of their motion. “The passage of time therefore further undermines Plaintiffs’ claim of irreparable harm,” wrote Alonso.  “This Court agrees with the Magistrate Judge’s assessment, ‘there is no indication that anything has negatively impacted Girl Plaintiffs’ education.”  Judge Alonso overruled the objections, and accepted the Magistrate’s recommendation to deny the preliminary injunction.

Now that pretrial motions have been disposed of, the court gave the defendants until January 30, 2018, to file an answer to the complaint, and set a status hearing for February 8. In light of the Whitaker case and Judge Alonso’s strongly-worded opinion, one would expect the school district to promptly file a motion for summary judgment, if ADF does not decide within the next few weeks to fold up its tent and steal away.  Of course, what could change the situation dramatically would be a grant of certiorari by the Supreme Court of the school district’s petition in the 7th Circuit Whitaker case.  But the parties in that case were reportedly close to a settlement and had asked the Supreme Court to extend the time for Whitaker’s counsel to file a response to the cert petition, so it appears likely that a cert grant will not be forthcoming during the month of January leading up to School District 211’s court-imposed deadline to respond to the complaint in this case.

The transgender student Intervenors are represented by the ACLU of Illinois and the national ACLU Foundation, with pro bono attorneys from Mayer Brown LLP.