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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.

Transgender Student Loses Fight Over Expulsion from UPJ

Posted on: April 10th, 2015 by Art Leonard No Comments

The federal court  for the Western District of Pennsylvania rejected a discrimination lawsuit by a transgender man who was expelled from the University of Pittsburgh at Johnstown in January 2012 for insisting on using men’s restroom and locker room facilities.  Just one day before the federal Equal Employment Opportunity Commission ruled that the Army had unlawfully discriminated against a transgender woman by denying her the right to use women’s facilities, U.S. District Judge Kim R. Gibson reached an opposite conclusion in his March 31 decision, finding that transgender legal precedents under Title VII of the Civil Rights Act did not apply to this lawsuit, which was brought under Title IX of the Higher Education Act and the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

The plaintiff, Seamus Johnston, was identified female at birth but by age nine had begun to self-identify as a boy, coming out to his parents.  He began living in accordance with his male gender identity beginning in May 2009, and a year later obtained counseling, being diagnosed by a psychotherapist as having a gender identity disorder.  A year later, he began hormone treatments.  In 2009 Johnston began the process of amending identification documents to reflect his male identity, and he obtained a common law name change in 2010.  His driver’s license was changed to his new name and gender identification in 2011, and he registered with the Selective Service system as a man in July 2011.  His amended passport was issued in February 2012, and he amended the gender marker in his Social Security records in November 2013.  However, he did not obtain a new birth certificate.

When he applied to the University of Pittsburgh at Johnstown (UPJ) in March 2009, he listed “female” on his application form, as he had not yet been diagnosed or begun hormone treatments.  He attended UPJ as an undergraduate for five semesters until his expulsion.  Although he had applied as female, upon arrival for his first semester in August 2009 he “consistently lived as a male,” he alleged in his lawsuit.  In August 2011, after his sophomore year, he asked the school to change the gender marker in his school records.  This request was not acted upon because he could not meet the school’s requirement that he present a birth certificate in his legal name identifying him as male.  The court’s opinion does not specify where he was born, but it seems likely that it was in a jurisdiction that won’t issue a new birth certificate without evidence of sex reassignment surgery, and Johnston had apparently not undergone that procedure.  He did present the school with a notarized affidavit about his name change, which led UPJ to change the name on his student records in the fall of 2011.

Johnston consistently used the men’s restrooms on campus.  Since he was living as a man, to do otherwise would be to risk a disorderly conduct arrest.  What he didn’t anticipate, however, was that he would be arrested for using the men’s restrooms.  What seems to have triggered this development was his enrollment in a men’s weight training class, attended only by men, and his use of the men’s locker room throughout the spring 2011 semester.  This came to the attention of the administration, and he was summoned to a meeting on September 19, 2011, after he enrolled in the class again for the fall semester.  He was told he could no longer use the men’s locker room.  He agreed to use a unisex locker room in the Sports Center, and was told that he could resume using the men’s locker room if his student records were “updated from female to male.”  For that, however, he would have to get either a court order or a changed birth certificate.

Johnston filed a complaint with UPJ’s president, whose response was the same: get a court order or a new birth certificate.  Doing neither, Johnston resumed using the men’s restroom, and was arrested by campus police.  He was barred from the Sports Center, and disciplinary charges were brought against him.  But he persisted in using the men’s restroom, and was ultimately barred from campus, suspended, and expelled in a proceeding culminating in a hearing before a student disciplinary panel.  A University Appeals Board ruled against him.  He lost his scholarship, and the Campus Police pressed criminal charges, leading to a guilty plea on trespass and disorderly conduct charges.  After he was expelled, he claims the University retaliated against him by giving his name to the FBI in connection with an investigation of a bombing threat received by the University.

He filed a federal lawsuit representing himself, alleging violations of the Equal Protection Clause of the 14th Amendment and Title IX of the Higher Education Act as well as various state laws.  Pennsylvania state law does not prohibit discrimination because of gender identity, so his state law claims also asserted sex discrimination.  The Equal Protection Clause has been interpreted by the 11th Circuit Court of Appeals to prohibit gender identity discrimination by a public employer.   Title IX bans sex discrimination by colleges and universities that receive federal funding.

Johnston sought to build on a growing body of court and administrative decisions in other parts of the country recognizing gender identity discrimination as a form of sex discrimination.  Most of those decisions are relatively recent, and as noted above, an important recent breakthrough decision by the EEOC on the restroom access issue was  issued the day after Judge Gibson ruled against Johnston in this case.

Unfortunately for Johnston, the Supreme Court has yet to rule on a gender identity discrimination claim, and neither has the U.S. Court of Appeals for the 3rd Circuit, whose rulings bind the federal courts in Pennsylvania.  Thus, Judge Gibson was facing a question of first impression in terms of binding precedent, and he resolved the question against Johnston.

“At the outset,” wrote Gibson, “the Court notes that society’s view of gender, gender identity, sex, and sexual orientation has significantly evolved in recent years.  Likewise, the Court is mindful that the legal landscape is transforming as it relates to gender identity, sexual orientation, and similar issues, especially in the context of providing expanded legal rights.  Within the context of these expanding rights and protections arise the profound question of self-identity, as exemplified by this case.  But, while this case arises out of a climate of changing legal and social perceptions related to sex and gender, the question presented is relatively narrow and the applicable legal principles are well-settled.”

Finding that the University had a legitimate interest in protecting the “privacy” of other students who did not want to share sex-segregated restroom and locker room facilities with persons of the other sex, Gibson concluded that, whether ruling under the Equal Protection Clause or Title IX, the University had a sufficient justification for excluding Johnston from facilities reserved for men.  His conclusion was bolstered by 3rd Circuit rulings from early in the history of Title IX upholding sex-segregated educational facilities, and he emphasized Johnston’s failure to allege that he had completed sex-reassignment surgery or obtained a new birth certificate indicating his sex as male.  Clearly, the University had stated that it would allow Johnston to use male facilities if he met the University’s requirement of a completed surgical gender transition with such documentation.

While acknowledging the growing body of lower federal court rulings in employment discrimination cases, Gibson insisted that employment rights were different from the issues raised in this case of access to educational facilities, where the University could be legitimately concerned about the safety and privacy interests of other students.  UPJ allowed Johnston to attend classes and use campus facilities for more than two years presenting himself as male, even though he applied as female.  It was when Johnston pushed things forward by enrolling in the men’s weight training class and using the men’s locker room that alarm bells went off about the privacy interests of other students, and he was not barred from participating in that class during the Fall 2011 semester, just from using men’s facilities, with the compromise offer of a gender-neutral restroom that was usually used by referees.

Having decided there was no federal claim in the case, Judge Gibson exercised his discretion to refuse to entertain Johnston’s state law claims.

The retaliation claim failed upon Gibson’s conclusion that Johnston’s sex discrimination claims were not viable.

Gibson’s reasoning and conclusions were contradicted the next day by the EEOC’s ruling in Tamara Lusardi’s case against the Army.  The EEOC concluded that under Title VII, a person identified as male at birth who was diagnosed with gender identity disorder, undertook transitional treatment (hormones), and was presenting as a woman with a legal name change, was entitled to be treated as a woman with access to women’s facilities, regardless whether she submitted to surgical procedures.  The EEOC said that it was not up to the employer to impose its own surgical requirement in order to recognize a person’s desired gender identity.   While Judge Gibson emphasized the privacy interests of students and the University’s overriding concern with the well-being of students, one could advance similar arguments in an employment setting.  In fact, the Army argued in Lusardi’s case that restricting her from using the women’s restroom was largely motivated by concern over the privacy interests of female co-workers.

In both cases, the defendant had offered a gender-neutral restroom facility for the plaintiff’s use.  The EEOC said the Army’s insistence on this was unlawful sex discrimination, but Judge Gibson concluded the opposite.    This tension in the interpretation of laws or constitutional provisions dealing with sex discrimination in gender identity cases awaits resolution at a higher level, either by the Supreme Court or by enactment of a broad non-discrimination law by Congress that includes gender identity.  Neither resolution seems imminent, as the state of Georgia did not seek Supreme Court review of the 11th Circuit case, and there seems little interest in Congress in amending federal sex discrimination laws to encompass gender identity.  Passage of the Employment Non-Discrimination Act would solidify Lusardi’s victory at the EEOC, but would do nothing to affect Johnston’s case, which requires an amendment to Title IX.  The EEOC has undertaken a litigation effort to establish appellate precedents in more circuits finding that gender identity discrimination is sex discrimination, perhaps culminating in a Supreme Court ruling, but a final resolution along those lines is probably years off.  Of course, Johnston might try to appeal to the 3rd Circuit, but that court has not taken a particularly expansive view of the sex discrimination provisions in Title IX.