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Posts Tagged ‘Title IX of Education Amendments of 1972’

Eleventh Circuit En Banc Holds Transgender Boy Not Entitled to Use Boys’ Restroom at Florida High School

Posted on: January 1st, 2023 by Art Leonard No Comments

Ruling in Adams v. School Board of St. Johns County, Florida, 2022 WL 18003879, 2022 U.S. App. LEXIS 35962 (Dec. 30, 2022), a case that could have been dismissed as moot if U.S. District Judge Timothy Corrigan (M.D. Fla.) had not awarded $1,000 in damages to Drew Adams in 2018, the U.S. Court of Appeals for the 11th Circuit, sitting en banc, voted 7-4 to reverse the district court and two vacated 2-1 opinions by a three-judge panel and hold that denying Adams, a transgender boy, access to the boys’ restrooms at Nease High School did not violate his rights under either the Equal Protection Clause or Title IX of the Education Amendments of 1972.  The 11th Circuit’s ruling makes a binding precedent for the federal courts in Florida, Alabama and Georgia.

All of the active Republican appointees on the court (six by Donald Trump, one by George W. Bush), voted to overrule the panel and district court opinions, which had found that the St. Johns County School Board violated Adams’ constitutional and statutory rights.  The active Democratic appointees (one by Bill Clinton, three by Barack Obama), dissented.  The three-judge panel that had ruled in favor of Adams had also split on party lines, with Obama appointees voting for Adams and a Bush appointee dissenting.  The only Republican appointee to vote in favor of Drew Adams was District Judge Corrigan (now serving as Chief Judge of the Middle District of Florida), who was appointed by President George W. Bush.

Circuit Judge Barbara Lagoa’s opinion for the court parted company from rulings in favor of transgender boys presenting the same issues that were previously issued by the 4th Circuit (Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir.  2020) and the 7th Circuit (Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F. 3d 1034 (7th Cir. 2017).  Lambda Legal, which is representing Drew Adams, has a difficult strategic decision to make, since the split of circuit opinion increases the odds that the Supreme Court would grant review of this case, and the current ideological tilt of the Court does not necessarily bode well for a reversal.

Drew Adams first enrolled as a student in the St. Johns school system in the fourth grade, at that time having a birth certificate identifying him as female, although the testimony in this case (which went through a three-day trial in December 2017) showed that Adams had identified as a boy from a very young age.  When he began attending Nease High School, he continued his practice of using the boys’ restrooms without incident for some time until two girls complained to the school administration.  No boys had ever complained about Adams using the boys’ restrooms.  Adams was then instructed that the only restrooms he could use were single-user gender neutral restrooms or the girls’ restrooms.

The school board had set up a task force to research issues presented by transgender students, and it had adopted a policy that students would be called by their desired names and pronouns and treated consistently with their gender identity except for the use of single-sex facilities.  As to those, the district insisted that students must be treated as the sex identified on their enrollment papers in the school district.  Thus, Adams, who enrolled in the 4th grade, would be treated as a girl for these purposes, and the district restricted the use of restrooms – the point of contention in this case – on the basis of what they called “biological sex,” which was the sex reflected on the birth certificate.

Ironically, by the time this issue became a point of legal contention, Adams had already transitioned as much as was possible before age 18, including undergoing gender-affirming hormone treatment, dressing and grooming as a boy, obtaining a legal name change, and obtaining a new birth certificate identifying him as male.  But the school district insisted that a student’s sex for purposes of restroom access was fixed at the time of their enrollment, regardless of such subsequent developments.

During the trial, it was established that if a student who was identified as female at birth transferred to the St. Johns County schools after having transitioned consistent with a male gender identity and had obtained a new birth certificate showing them as male, they would be treated based on their enrollment papers as male.  Thus, a transgender boy’s ability to access a restroom was not really based on “biological sex” (whatever that might mean) but was actually based on the sex identified on legal documents at the time they enrolled in the school district.  And the district court received expert testimony, not rebutted by the school district, that the phrase “biological sex” as used by scientists encompasses more than observable genitalia.  There was also unrebutted expert testimony that Adams should be considered a biological male.

Adams filed suit in June 2017 in the Middle District of Florida.  At the time, he was a “rising junior” at Nease.  The trial was held in December 2018, resulting in Judge Corrigan’s 2018 decision, 318 F. Supp. 3rd 1293.  Judge Corrigan concluded that the district’s policy, as applied to Adams, violated his equal protection and Title IX rights.  By then, case law in the 11th Circuit had long since recognized – in Glenn v. Brumby, 663 F.3d. 1312 (2011), a public employee discharge case — that discrimination based on gender identity was a form of sex discrimination for equal protection purposes, subject to “heightened scrutiny.”  The district judge concluded that the school district failed to prove that barring Adams from using the boys’ bathrooms would significantly advance an important governmental interest, at least in part because had Adams transferred into the district after transitioning, he would have been allowed to use the boys’ restroom, fatally undermining the school district’s contention that their “important governmental interest” was protecting the privacy rights of cisgender boys.  The judge concluded based on the trial record that Adams was a boy who was entitled to use facilities intended for boys.  Judge Corrigan also found a violation of Title IX, rejecting the school district’s argument that Title IX regulations authorizing schools to maintain separate restroom facilities for boys and girls made their policy lawful.  He issued an injunction ordering that Adams, who was still a student at that time, be allowed to use the boys’ restrooms at the high school and awarded him $1,000 in damages.  The district promptly appealed to the 11th Circuit.

A three-judge panel voted 2-1 in August 2020, 968 F.3d 1286, to affirm Judge Corrigan’s ruling on both constitutional and statutory grounds.  The dissenting judge was Chief Judge William H. Pryor, Jr., who blocked the court’s mandate from being issued and effectively coerced the majority of the panel to reconsider the basis for its ruling.

In a July 2021 decision, again 2-1, 3 F.4th 1299, the same panel affirmed Judge Corrigan’s ruling but only on constitutional grounds, with the majority apparently hoping that limiting its opinion to that extent would meet Judge Pryor’s objection that there was no existing 11th Circuit precedent holding that Title IX extended to discrimination because of gender identity.  But Pryor blocked the mandate again, and a majority of the active judges on the 11th Circuit voted to vacate the panel decisions and reconsider the case by the full court, which then consisted of 12 judges.  Since then, however, one of Obama’s appointees, Circuit Judge Beverly B. Martin, who wrote the two panel decisions, has retired, and President Biden’s nominee has not yet been confirmed, so an eleven-judge bench convened to reconsider the case.

As Adams was a “rising junior” when he filed this lawsuit in June 2017, he was no longer a student at Nease High School when the en banc case was argued, and the issue of the injunction is effectively moot.   Judge Corrigan’s 2018 decision had limited the injunction just to Adams, as the case was not brought as a class action on behalf of all transgender students and, he pointed out, all of the factual evidence in the case related to Adams, not to any other transgender students.  However, since the judge awarded Adams damages, the school district’s appeal is not moot.

Judge Lagoa’s opinion for the majority treats the issue before the court as whether it violates the Constitution or Title IX for a school to have a policy that student restroom access is based on “biological sex.”  The dissenting opinions point out that this is not really the question before the court, because the school district’s policy is based on sex as identified on enrollment papers, not “biological sex identified at birth,” and, more fundamentally, Adams is not challenging the right of the school district to maintain single-sex multi-user bathrooms.  Rather, he is arguing that as a transgender boy, recognized as male by the state of Florida through the issuance of a new birth certificate which required the submission of medical evidence of transition, he is entitled to use the boys’ bathroom the same as any other boy.  Adams, in his state of transition, claims to be entitled to be treated the same as cisgender boys.

The underlying basis of Judge Lagoa’s opinion, of course, is that it is an article of faith among most Republican conservatives — the “party line,” as it were – that “biological sex” as identified at birth is immutable, and that no matter what transitional or gender-affirming treatment a person receives, they remain “biologically” the sex by which they were identified at birth, normally through visual inspection of their genitalia by the delivering physician.  This is reflected in the fact that throughout her lengthy opinion, Judge Lagoa never refers to Adams as he/his/him, but rather just by using the surname “Adams.”  Judge Jill Pryor, a member of the original three-judge panel and author of the lengthiest dissenting opinion, refers to Adams by pronouns consistent with his gender identity.

As to the equal protection analysis, Lagoa asserts that equal protection applies to intentional discrimination between similarly-situated people.  As far as the majority is concerned, Adam remains a “biological girl” and thus is not similarly situated with the cisgender boys who are allowed to use the boys’ restroom.  The majority of the court holds that there is no discrimination on the basis of sex and thus no equal protection violation.  They also reject a a disparate impact theory, observing that equal protection is limited to intentional discrimination.  They do accept, based on 11th Circuit precedent, that if there was discrimination, it would be subject to “heightened scrutiny,” but they find that the school district’s policy would survive that test based on the district’s concern for the privacy interests of the cisgender boys who don’t want a “biological girl” present in their bathrooms.  They reach this conclusion by ignoring all the nuances of Judge Corrigan’s factual determinations on the privacy issue, and also the contrary rulings by other courts that have rejected such privacy arguments in the context of transgender school restroom cases, such as Grimm and Whitaker.

Turning to Title IX, the court rejects the three-judge panel’s application of Bostock v. Clayton County, 140 S. Ct. 1731 (2020), to Title IX.  In Bostock, the Supreme Court held, among other things, that an employer who fires an employee because of their transgender status has discriminated “because of sex,” subjecting the employer’s action to attack under Title VII of the Civil Rights Act of 1964.  This was because, the Court ruled, it is impossible to discriminate because of transgender status without discriminating because of sex.  The Trump administration’s immediate reaction to this ruling was that it applied only to Title VII, not to any other federal sex discrimination law, such asTitle IX, and this position has also become part of the “party line” among many of Trump’s judicial appointees.

It is true that in the Bostock decision, Justice Neil Gorsuch, writing for the Court, asserted that the Court was deciding only the issue before it – whether a person discharged because they are gay or transgender can bring a discrimination claim under Title VII – and was not deciding anything about bathrooms or other statutes.  But the logic of that decision has struck many lower federal courts, as well as state courts interpreting their own civil rights laws – as relevant to deciding that laws outlawing sex discrimination should now be interpreted to ban gender identity discrimination.  The dissenters note and cite the relevant cases.

Judge Lagoa also found that because Title IX is a spending clause case (i.e., a case enacted by Congress to place conditions on the receipt of federal funding by educational institutions), the school district would have to have been on notice that accepting federal funding would obligate it to provide restroom access according to gender identity to transgender students, and the court found that this requirement was not satisfied, thus insulating the school district from Adams’s damage claim.

In addition to writing the opinion for the court, Judge Lagoa wrote a separate concurring opinion to focus on an issue not properly before the court: her contention that ruling in favor of Adams under Title IX would destroy girls’ scholastic sports competition.  This separate opinion is totally unwarranted and inappropriate, first because the judge already devoted some irrelevant discussion to this issue in her opinion for the court, and secondly because she asserts facts that are not based on any trial record in this case, as the issue of transgender girls participating in girls’ sports has nothing to do with the issue of transgender boys using boys’ restrooms, implicating a completely different universe of relevant facts.

The dissenting opinions filed by Circuit Judges Charles R. Wilson, Robin Rosenbaum, and Jill Pryor, take on the majority opinion in detail, pointing out the numerous flaws in reasoning and failure to apply precedent honestly.  Judge Wilson emphasizes that the court’s narrow view of “biological sex” fails to take account of knowledge about divergent sexual identities, being so crudely reductionist that it creates all kinds of interpretive problems.  How would the school district deal with an “intersex” student, for example?  Judge Pryor’s dissent, the lengthiest, picks up from the detailed panel opinions by Judge Martin and points out the blatant fallacies strewn through Judge Lagoa’s opinion.

Federal Court Rules for Gavin Grimm in Long-Running Virginia Transgender Bathroom Case

Posted on: August 10th, 2019 by Art Leonard No Comments

After more than four years of litigation, there is finally a ruling on the merits in Gavin Grimm’s transgender rights lawsuit against the Gloucester County (Virginia) School Board.  On August 9, U.S. District Judge Arenda L. Wright Allen granted Grimm’s motion for summary judgment, finding that the school district violated his rights under Title IX of the Education Amendments of 1972 and the 14th Amendment’s Equal Protection Clause by refusing to let the transgender boy use the boys’ restroom facilities while he was attending Gloucester High School and by refusing to update his official school transcript to conform to the “male” designation on his amended birth certificate.  Grimm v. Gloucester County School Board, 2019 WL 3774118 (E.D. Va., Aug. 9, 2019).

In addition to awarding Grimm a symbolic damage recovery of $1.00, the court issued a permanent injunction requiring the School Board to update Grimm’s official records and provide “legitimate copies of such records” to Grimm by August 19.  Judge Wright Allen also ordered that the Board “shall pay Mr. Grimm’s reasonable costs and attorneys’ fees” in an amount to be determined.  In light of the length and complexity of this lawsuit, the fee award is likely to be substantial.

Grimm began his freshman year at Gloucester High School in 2013 listed as a girl on enrollment papers, consistent with his original birth certificate.  During spring of his freshman year, Grimm told his parents that he was transgender and he began therapy with Dr. Lisa Griffin, a psychologist experienced in transgender issues, who diagnosed gender dysphoria and put the diagnosis in a letter that Grimm later presented to school officials.  Also in 2014, Grimm legally changed his first name to Gavin and began using the mens’ restrooms “in public venues.”  Prior to the beginning of his sophomore year at Gloucester High, he and his mother met with a school guidance counselor, provided a copy of Dr. Griffin’s letter, and requested that Grimm be treated as a boy at school.

They agreed that Grimm would use the restroom in the nurse’s office, but he found it stigmatizing and inconvenient, making him late for classes.  After a few weeks of this, he met with the guidance counselor and sought permission to use the boys’ restrooms.  The request went up to the school’s principal, Nate Collins, who conferred with the Superintendent of Schools, Walter Clemons, “who offered to support Principal Collins’ final decision,” according to testimony in the court record.  Collins then gave Grimm the go-ahead to use the boys’ bathrooms, which he did for seven weeks without any incident.  Grimm had been given permission to complete his phys ed requirement through an on-line course and never used the boys’ locker room at school.

Word that a transgender boy was using the boys’ restrooms got out in the community and stirred up opposition from “adult members of the community,” who contacted school officials to demand that Grimm be barred from using the boys’ rooms.  The School Board devoted two meetings to the issue, finally voting in December 2014 to adopt a formal policy that the use of restroom and locker room facilities “shall be limited to the corresponding biological genders, and students with gender identity issues shall be provided an alternative appropriate private facility.”

The Board announced that it would construct some single-sex unisex restrooms in the high school, but until then Grimm would have to use the restroom in the nurse’s office.  There eventually were such unisex restrooms, but they were not conveniently located for use between classes and Grimm ended up not using them, finding a requirement to use them as stigmatizing.  Instead, he tried to avoid urinating at school and developed urinary tract infections, as well as suffering psychological trauma.

Meanwhile, at the end of his sophomore year in June 2015, the Virginia Department of Motor Vehicles issued Grimm a state ID card identifying him as male.  When he need brief hospitalization to deal with thoughts of suicide during his junior year, he was admitted to the boys’ ward at Virginia Commonwealth University’s hospital.  In June 2016, he had top surgery, and on September 9, 2016, the Gloucester County Circuit Court ordered the Health Department to issue him a new birth certificate listing him as male, referring to his surgery as “gender reassignment surgery” even though it did not involve genital alteration.  In October 2016, Grimm presented a photocopy of his new birth certificate to the school, but they refused to update his records to reflect male status, and his transcripts still identify him as female.

Grimm, represented by the American Civil Liberties Union (ACLU), filed his lawsuit on June 11, 2015, in the U.S. District Court for the Eastern District of Virginia in Norfolk.  The case was assigned to Senior District Judge Robert G. Doumar, who quickly granted the school district’s motion to dismiss the Title IX claim and reserved judgment on Grimm’s constitutional claim while Grimm appealed the dismissal.  The 4th Circuit Court of Appeals reversed the dismissal, relying on an interpretation of Title IX endorsed by the U.S. Departments of Education and Justice during the Obama Administration, and sent the case back to Judge Doumar, who issued a preliminary injunction on June 23, 2016, requiring the School Board to let Grimm use the boys’ restrooms.  Conveniently for the school board, this order came at the end of the school year, so they had several months of summer break to try to forestall having to let Grimm use the boys’ restroom when school resumed.  Although the 4th Circuit quickly turned down the Board’s motion to stay the injunction, an emergency application to the Supreme Court was granted on August 3, 2016, pending the filing of a petition for review by the School Board and guaranteeing that Grimm was unlikely to be able to use the boys’ restrooms during his senior year if review was granted by the Supreme Court.

Ultimately, the Board did filed its appeal, which was granted with argument set to take place in March 2017.  This timing would virtually guarantee that Grimm would not be able to use the boys’ restrooms at the high school before his graduation, since a case argued in March would not likely result in an opinion being issued until June.  Elections and fate intervened as well, as the new Trump Administration moved to “withdraw” the Obama Administration’s interpretation of Title IX, on which the 4th Circuit had relied.  The Solicitor General advised the Supreme Court of this withdrawal and the Court took the case off the hearing calendar and sent it back to the 4th Circuit, which in turn sent it back to the district court.  Judge Doumar having retired, the case was reassigned to Judge Wright Allen.

Since Grimm had graduated by then, the School Board argued that his request for injunctive relief was moot, as he would no longer be attending Gloucester High School. The ACLU countered that the question of the restroom policy’s lawfulness was not moot, that Grimm as an alumnus would be barred from using the boys’ restroom when he returned to the school for public events, that Grimm was still entitled to a ruling on his claim for damages.  The district court refused to dismiss the case, and discovery went forward.  Although the lawsuit had already been to the 4th Circuit twice and to the Supreme Court, there still had not been any ultimate ruling on the merits of the case at that point.

On May 22, 2018, Judge Wright Allen issued a ruling denying the School Board’s motion to dismiss the case as moot, and she ruled that Grimm had a viable claim of sex discrimination under Title IX.  She also ruled at that time that the constitutional equal protection claim would be decided using “intermediate scrutiny,” which puts to the government the burden to show that its policy substantially advances an important government interest.  On February 19, 2019, the court allowed Grimm to file a new amended complaint adding the issue of the School Board’s refusal to issue a corrected transcript.

On July 23, the court heard arguments on new motions for summary judgment filed by both parties.  These motions were decided by Judge Wright Allen’s August 9 ruling, which also rejected most of the School Board’s objections to various items of evidence offered by Grimm – mainly letters and medical records documenting his gender dysphoria diagnosis and subsequent treatment – which were incorrectly described by the School Board as “expert testimony” that was not admissible through discovery.  The court agreed to the school board’s argument that documents relating to failed settlement discussions should be excluded from consideration.

As to the merits of Grimm’s Title IX claim, the court found that Grimm had been excluded from participation in an education program on the basis of sex when the School Board adopted a policy that would bar him from using the boys’ restrooms at the high school, that the policy harmed Grimm both physically and psychologically, and that because the Gloucester schools receive federal financial assistance, they are subject to Title IX.   Consequently, summary judgment should be granted to Grimm on his Title IX claim.

As to the Equal Protection claim, the court relied on a Supreme Court ruling concerning the exclusion of girls from Virginia Military Institute, in which Justice Ruth Bader Ginsburg wrote that in a sex-discrimination case involving “intermediate scrutiny,” the defendant bears the burden of “demonstrating that its proffered justification for its use of the classification is ‘exceedingly persuasive.’”  In this case, the Board’s justification was “an interest in protecting the privacy rights of students, specifically privacy interests that students have in protecting their unclothed bodies.”

Judge Wright Allen found that the Board had made “no showing that the challenged policy is ‘substantially related’ to protection of student privacy.”  She referred to the lack of any student complaints during the seven-week period that Grimm used the boys’ restrooms during his sophomore year and, she wrote, “The Board’s privacy argument also ignores the practical realities of how transgender individuals use a restroom.”  Common sense prevailed, as the judge quoted another trans bathroom court opinion: “When he goes into a restroom, the transgender student enters a stall, closes the door, relieves himself, comes out of the stall, washes his hands, and leaves.”

The Board’s witness at the summary judgment hearing, conceding that there was no privacy concern for other students when a transgender student walks into a stall and shuts the door, testified that “privacy concerns are implicated when students use the urinal, use the toilet, or open their pants to tuck in their shirts.  When asked why the expanded stalls and urinal dividers could not fully address those situations,” wrote the judge, “Mr. Andersen responded that he ‘was sure’ the policy also protected privacy interests in other ways, but that he ‘couldn’t think of any other off the top of his head.’  This court is compelled to conclude that the Board’s privacy argument ‘is based upon sheer conjecture and abstraction,’” this time referring to the 7th Circuit ruling in Ash Whitaker’s trans bathroom case.

Judge Wright Allen also pointed out that although trans high school students have not had genital surgery, if they are taking hormones they are developing secondary sex characteristics of the gender with which they identify.  “If exposure to nudity were a real concern,” she wrote, “forcing such a transgender girl to use male restrooms could likely expose boys to viewing physical characteristics of the opposite sex. From this perspective, the Board’s privacy concerns fail to support the policy it implemented.”

The court concluded that the School Board’s policy must be found unconstitutional, pointing out, in addition, that the Board’s refusal to change the gender indication on Grimm’s school records “implicates no privacy concerns.”  The Board had contended that there were some doubts about the validity of the new birth certificate, because the photocopy they were provided was marked “Void.”  This was explained away by testimony from the government official responsible for issuing the documents.  It seems that all but the original would be marked “Void,” and that Grimm has a valid, authentic birth certificate identifying him as male, which the School Board should have honored.

Judge Wright Allen acknowledged the difficult task the School Board faced in deciding how to proceed during the fall of 2014.  She wrote, “The Board undertook the unenviable responsibility of trying to honor expressions of concern advanced by its constituency as it navigated the challenges represented by issues that barely could have been imagined or anticipated a generation ago.  This Court acknowledges the many expressions of concern arising from genuine love for our children and the fierce instinct to protect and raise our children safely in a society that is growing ever more complex.  There can be no doubt that all involved in this case have the best interests of the students at heart.”  However, this was no excuse for imposing a discriminatory and unconstitutional policy on Grimm.

“However well-intentioned some external challenges may have been,” Wright Allen continued, “and however sincere worries were about possible unknown consequences arising from a new school restroom protocol, the perpetuation of harm to a child stemming from unconstitutional conduct cannot be allowed to stand.  These acknowledgements are made in the hopes of making a positive difference to Mr. Grimm and to the everyday lives of our children who rely upon us to protect them compassionately and in ways that more perfectly respect the dignity of every person.”

Grimm had long since disclaimed any demand for financial compensation for the injuries he suffered in violation of his statutory and constitutional rights, so the court awarded only nominal (symbolic) damages of $1.00, but it directed that the School Board issue a new, corrected transcript in ten days, and the parties will now haggle about the size of the award of attorney’s fees and costs, which should be substantial.

Judge Arenda L. Wright Allen, nominated to the court by President Barack Obama, was the first female African-American judge to serve in the U.S. District Court for the Eastern District of Virginia after she was unanimously confirmed by the Senate (96-0) in May 2011.  She had previously been the top Federal Public Defender in the Eastern District of Virginia, and was a former Assistant U.S. Attorney and a military judge.  Prior to this ruling, her most noteworthy decision, issued in February 2014, declared Virginia’s ban on same-sex marriage unconstitutional.

 

United States Supreme Court Refuses to Review Transgender Bathroom Case from Boyertown, Pennsylvania

Posted on: May 28th, 2019 by Art Leonard No Comments

The Supreme Court announced on May 28 that it will not review a decision by the Philadelphia-based 3rd Circuit Court of Appeals, which had rejected a constitutional and statutory challenge by cisgender students at Boyertown (Pennsylvania) Senior High School, who were upset that the School District decided to let transgender students use facilities consistent with their gender identity.  Doe v. Boyertown Area School District & Pennsylvania Youth Congress Foundation, 897 F.3d 518 (3rd Cir. 2018), cert. denied, 2019 WL 2257330 (May 28, 2019).

The federal lawsuit stemmed from a decision in 2016 by the School District to permit transgender students to use restrooms and locker rooms consistent with their gender identity.  Alliance Defending Freedom (ADF) and local attorneys affiliated with the Independence Law Center in Harrisburg filed suit on behalf of several cisgender students, proceeding under pseudonyms, contending that this decision violated their rights on three theories: constitutional right of bodily privacy under the 14th Amendment, creation of a “hostile environment” in violation of Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal funds, and violation of the right of privacy under Pennsylvania state common law.  Upon filing their complaint, the plaintiffs asked U.S. District Judge Edward G. Smith (E.D. Pa.) to issue a preliminary injunction to block the school district’s policy while the case was pending.

Lawyers for the American Civil Liberties Union of Pennsylvania and the ACLU’s National LGBT Rights Project joined the case, representing the Pennsylvania Youth Congress Foundation, which intervened as a co-defendant to help the School District defend its policy.

This case is part of a national campaign by ADF to preserve and defend restrictions on restroom and locker room use by transgender students, part of ADF’s overall goal – consistent with the Trump Administration’s anti-transgender policies – to deprive transgender people of any protection under federal law.  So far, ADF has lost a succession of “bathroom” cases, and the 3rd Circuit’s ruling in this case was one of its most notable defeats.  At the same time, however, the Education Department under the leadership of Trump’s appointee, Betsy De Vos, has reversed the Obama Administration’s policy and now refuses to investigate discrimination claims by transgender students under Title IX, leaving it up to individuals to file lawsuits seeking protection under the statute.

Judge Smith refused to issue the requested preliminary injunction on August 25, 2017, 276 F. Supp. 3d 324, writing an extensive decision that concluded that the plaintiffs were unlikely to prevail on the merits of any of their theories, and that mere exposure to transgender students was not going to impose an irreparable injury on them anyway.   Judge Smith was appointed by President Barack Obama in 2013, but it was noteworthy that at his Senate confirmation vote, he received more votes from Republican Senators than Democratic Senators.

Plaintiffs appealed to the 3rd Circuit, and suffered a loss before a unanimous three judge panel, which issued its decision on June 18, 2018.  The opinion was written by Circuit Judge Theodore McKee, who was appointed by President Bill Clinton.  The other judges on the panel were Circuit Judge Patty Shwartz, who was appointed by President Obama to fill the vacancy created by Circuit Judge Marion Trump Barry, President Trump’s sister, when she took senior status; and Senior Circuit Judge Richard Nygaard, who was appointed by President Ronald Reagan.

Judge McKee’s opinion set the stage with an extended discussion of gender identity based on the expert testimony offered by defendants in opposition to the motion for preliminary relief, including a much-cited amicus brief by the American Academy of Pediatrics and the American Medical Association, which stated that policies excluding transgender students from “privacy facilities” consistent with their gender identities “have detrimental effects on the physical and mental health, safety, and well-being of transgender individuals.”  Judge McKee also quoted from an amicus brief filed by National PTA and Gay-Lesbian-Straight Education Network (GLSEN), that forcing transgender students to use bathrooms or locker rooms that don’t match their gender identity causes “severe psychological distress often leading to attempted suicide.”  In other words, the starting point for the court’s discussion was that the School District’s policy was responding to a serious problem faced by transgender students.

The court noted that as part of its policy the School District had renovated its “privacy facilities” to increase the privacy of individual users, and had provided single-user restrooms open to any student so that students who did not want to share facilities with others because of their gender identity would not be forced to do so.   The District also required that students claiming to be transgender meet with counselors trained to address the issue, and go through a process of being approved to use facilities consistent with their gender identity.  “Once a transgender student was approved to use the bathroom or locker room that aligned with his or her gender identity,” wrote Judge McKee, “the student was required to use only those facilities,” although any student was allowed to use the single-user restrooms.  “The student could no longer use the facilities corresponding to that student’s birth sex.”

The plaintiffs claimed that their right to privacy was violated because the school’s policy permitted them to be viewed by members of the opposite sex while partially clothed.  The 3rd Circuit found that Judge Smith “correctly found that this would not give rise to a constitutional violation because the School District’s policy served a compelling interest – to prevent discrimination against transgender students – and was narrowly tailored to that interest.”  The court pointed out that privacy rights under the Constitution are not absolute.  Furthermore, wrote McKee, “the School District’s policy fosters an environment of inclusivity, acceptance, and tolerance,” and that, as the National Education Association’s amicus brief “convincingly explains, these values serve an important educational function for both transgender and cisgender students.”

While the court empathized with cisgender students who experienced “surprise” at finding themselves “in an intimate space with a student they understood was of the opposite biological sex” – an experience specifically evoked in the plaintiffs’ brief in support of their motion – the court said, “We cannot, however, equate the situation the appellants now face with the very drastic consequences that the transgender students must endure if the school were to ignore the latter’s needs and concerns.”  And, the court pointed out, cisgender students “who feel that they must try to limit trips to the restroom to avoid contact with transgender students can use the single-user bathrooms in the school.”  The court rejected plaintiffs’ argument that the best solution to the issue was to require transgender students to use the handful of single-user restrooms, finding that this would “significantly undermine” the District’s compelling interest in treating transgender students in a non-discriminatory manner.

The court also pointed out that the plaintiffs’ privacy arguments sought to push that doctrine far beyond anything supported by existing case law. The court rejected analogies to cases involving inappropriate strip searches and peeping toms.  “Those cases involve inappropriate conduct as well as conduct that intruded into far more intimate aspects of human affairs than here.  There is simply nothing inappropriate about transgender students using the restrooms or locker rooms that correspond to their gender identity” under the School District’s policy, insisted the court, which also found that the “encounters” described by the plaintiffs did not involve transgender students doing “anything remotely out of the ordinary” while using the “privacy facilities” at the school.

As a result of these findings, the court concluded that the plaintiffs were unlikely to succeed on the merits of their privacy claims under Title IX, the Constitution, or Pennsylvania tort law.  Further, looking to “hostile environment sex discrimination” claims under Title IX (and the more developed hostile environment case law under Title VII of the Civil Rights Act of 1964, which covers employment discrimination and serves as a resource for courts interpreting Title IX), the court found that the possibility of encountering transgender students in a restroom failed to meet the high test set by the courts 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 possibility of occasionally encountering one of a handful of transgender students in a “privacy facility” fell far short of meeting that test.

Furthermore, the court found that the District’s policy was “sex-neutral” in that it applied to everybody, and asserted that plaintiffs had not “provided any authority” for the proposition that a “sex-neutral policy” would violate Title IX.  “The School District’s policy allows all students to use bathrooms and locker rooms that align with their gender identity,” wrote McKee. “It does not discriminate based on sex, and therefore does not violate Title IX.”

The court drew support for its conclusion from the Chicago-based 7th Circuit Court of Appeals ruling in Ash Whitaker’s lawsuit against the Kenosha, Wisconsin, school district, where the court found that excluding a transgender boy from using the boys’ restroom facilities did violate Title IX.  See Whitaker v. Kenosha Unified School District No. 1 Board of Education, 858 F.3d 1034 (7th Cir. 2017). Consistent with that ruling, the Boyertown School District’s policy could be seen as mandated by its obligation under Title IX to provide equal educational access and opportunities to transgender students.  The court also noted transgender rights rulings by the 1st, 6th, 9th and 11th Circuits, concluding that anti-transgender discrimination in a variety of contexts violates federal laws forbidding sex discrimination.  There is an emerging consensus among federal courts of appeals along these lines.  The validity of this reasoning will be up for Supreme Court debate next Term when the Court reviews the 6th Circuit’s decision in favor of Aimee Stephens, the transgender employment discrimination plaintiff in the Harris Funeral Homes case, to be argued in the fall.

The plaintiff’s petition to the Supreme Court to review the Boyertown decision posed two questions to the Court: “Whether a public school has a compelling interest in authorizing students who believe themselves to be members of the opposite sex to use locker rooms and restrooms reserved exclusively for the opposite sex, and whether such a policy is narrowly tailored,” and “Whether the Boyertown policy constructively denies access to locker room and restroom facilities under Title IX ‘on the basis of sex.’”  These questions were phrased by ADF to incorporate its religiously-based beliefs seeking to discredit the reality of transgender existence, similar to attempts by the Trump Administration in its proposed regulations and policy statements.  If the Court had been tempted to grant this petition, it would likely have reworded the “Questions Presented,” as it pointedly did when it granted ADF’s petition to review the Harris Funeral Homes decision on April 22.

Although the decision not to review a court of appeals case does not constitute a ruling on the merits by the Supreme Court and does not establish a binding precedent on lower courts, it sends a signal to the lower courts, the practicing bar, and the parties.  In this case, the signal is important for school districts to hear as they try to navigate between the rulings by courts in favor of transgender student claims and the Trump Administration’s reversal of Obama Administration policy on this issue.  The question whether Title IX mandates the Boyertown School District’s access policy was not squarely before the Court in this case, and the justices may have denied review because they were already committed to consider whether federal sex discrimination laws cover gender identity discrimination in the Harris Funeral Homes case.

The Court normally provides no explanation why it grants or denies a petition for review although, interestingly, in another announcement on May 28, the Court did provide such a rare explanation in Box v. Planned Parenthood of Indiana and Kentucky, 2019 WL 2257160 (Sup. Ct., May 28, 2019).  In Box, the Court denied review of a decision by the 7th Circuit striking down on constitutional grounds an Indiana law that prohibits health care providers from providing abortions that are motivated solely by the sex, race or disability of the fetus, stating: “Only the Seventh Circuit has thus far addressed this kind of law.  We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”  The implication for the Boyertown case is that the 3rd Circuit opinion may have been denied review because it was the only federal appeals court ruling to address the precise question before the Court.