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Posts Tagged ‘transgender “bathroom wars”’

Virginia School Board Asks Supreme Court to Overturn Gavin Grimm’s Transgender Rights Victory

Posted on: February 20th, 2021 by Art Leonard No Comments

The Gloucester County (Virginia) School Board filed a petition on February 19 with the Supreme Court seeking reviewing of the lower courts’ rulings in the lawsuit originally filed by Gavin Grimm, a transgender man, when he was a student at the School Board’s high school, seeking to be allowed to use restrooms consistent with his gender identity.  The School Board is appealing from an August 2020 decision by the 4th Circuit Court of Appeals, Gloucester County School Board v. Grimm, 972 F.3d 586 (4th Cir. 2020), which upheld the district court’s ruling that the School Board violated Grimm’s rights under Title IX and the Equal Protection Clause of the 14th Amendment by refusing to let him use the boys’ restroom facilities at the high school.

The Supreme Court had actually granted a petition for certiorari at an earlier point in this case, after the 4th Circuit ruled in 2016 that the district court should not have rejected Grimm’s Title IX sex discrimination claim, but should instead have deferred to the Obama Administration’s interpretation of the statute, as reflected in a letter filed with the district court that was subsequently formalized in a “Dear Colleague” letter sent by the U.S. Department of Education to the nation’s public school systems.  The narrowly framed question at that time was whether the district court should defer to an interpretation of Title IX regulations by the Obama Administration, which had articulated the view that Title IX’s ban on sex discrimination should be interpreted to include discrimination because of gender identity, and that transgender students are entitled to be dealt with by their schools consistent with their gender identity.

Oral argument was scheduled for March 2017, but then cancelled at the request of the Trump Administration as it withdrew the Obama Administration’s policy, and the Education Department ceased to investigate and pursue discrimination claims by transgender students.

Grimm’s pursuit of injunctive relief was largely mooted to a certain extent when he graduated from the high school that spring, but ultimately on remand the district court ruled in his favor on liability under Title IX, holding that he had suffered unlawful discrimination while a student, as well as by being denied an official high school transcript using his male name, a ruling that was upheld by the 4th Circuit on August 26, 2020, then denying a motion for rehearing on September 22.

The Trump Administration had disavowed enforcing Title IX in support of restroom access claims by transgender students, withdrawing the Obama Administration’s policy statement and proclaiming disagreement with the contention that Title IX extends to gender identity discrimination claims.  But after Trump lost re-election in November, the School Board had a new incentive to keep the case going, sine Joseph Biden’s campaign agenda, taken together with the Supreme Court’s ruling in Bostock v. Clayton County last June, made it likely that the Education Department would resume enforcing Title IX on gender identity claims by students.

After the Supreme Court ruled in Bostock, a Title VII employment discrimination case, that discrimination because of gender identity was necessarily discrimination because of sex, Trump Administration officials asserted that the ruling was not binding under Title IX.  However, President Biden’s January 20 Executive Order directing all federal agencies to follow the reasoning of Bostock in enforcing their statutory provisions banning sex discrimination (and specifically mentioning Title IX in this regard), signaled that the Education Department would resume processing discrimination claims by transgender students.  Indeed, in his Executive Order, President Biden specifically mentioned that students should not have to worry about being allowed to use restrooms.

The question presented by the Gloucester County petition: “Does Title IX or the Equal Protection Clause require schools to let transgender students use multi-user restrooms designated for the opposite biological sex, even when single-user restrooms are available for all students regardless of gender identity?”  This question, in the context of employee restroom use, was explicitly not addressed by the Court in Bostock, as not having been presented as an issue in that case, and Justice Neil Gorsuch, writing for the Supreme Court, solely focused its holding on the question whether a gender identity or sexual orientation discrimination claim could be presented to the courts under Title VII, although the Court’s articulated reason in so ruling would clearly apply to any statute that forbids discrimination because of sex (and plausibly to the Equal Protection Clause as well), as President Biden proclaimed in his Executive Order.

The Supreme Court has never directly ruled on the restroom issue in the context of Title IX, but its grant of review and scheduling of argument in the earlier stage of this case shows that at one time it had found the issues sufficiently compelling to grant review.  Since that time, Justice Gorsuch as replaced Justice Scalia, Justice Kavanaugh has replaced Justice Kennedy, and Justice Barrett has replaced Justice Ginsburg, generally moving the Court to a more conservative tilt.  While lower federal courts have generally fallen into line with the Obama Administration’s interpretation of these issues in school litigation, it is unclear that the Supreme Court will continue that trend with its current ideological line-up.  The Court’s 6-3 ruling in Bostock does not necessarily signal how it would rule if it grants review in this case.

Gavin Grimm has been represented through the litigation by the LGBT Rights Project of the ACLU.  Gene C. Schaerr, an experienced conservative Supreme Court litigator, is listed as Counsel of Record on the School Board’s petition.

Third Circuit Rejects Challenge to Pennsylvania School District’s Policy Allowing Transgender Students to Use Facilities Consistent with Their Gender Identities

Posted on: May 26th, 2018 by Art Leonard No Comments

A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit took the unusual step on May 24 of announcing about an hour after hearing oral argument that it would unanimously affirm U.S. District Judge Edward G. Smith’s ruling from last summer denying a motion for a preliminary injunction by a group of parents and students seeking to stop the Boyertown (Pennsylvania) Area School District from continuing to implement a policy allowing transgender students to use locker rooms and bathrooms corresponding to their gender identities. Doe v. Boyertown Area School District, 2018 WL 2355999 (3rd Cir., May 24, 2018), affirming 276 F. Supp. 2d 324 (E.D. Pa., August 25, 2017).

Later that day, the court issued a brief “Judgement” written by Circuit Judge Theodore A. McKee, so brief that it can be quoted in full here: “We agree Plaintiffs have not demonstrated a likelihood of success on the merits and that they have not established that they will be irreparably harmed if their Motion to Enjoin the Boyertown School District’s policy is denied. We therefore Affirm the District Court’s denial of a preliminary injunction substantially for the reasons that the Court explained in its exceptionally well-reasoned Opinion of August 25, 2017.  A formal Opinion will follow. The mandate shall issue forthwith.  The time for filing a petition for rehearing will run from the date that the Court’s formal opinion is entered on the docket.”  There was some suggestion in press reports that after hearing argument the court was concerned that the affirmance be effective immediately, since the school year would shortly end.

This is one of several similar cases filed around the country by Alliance Defending Freedom (ADF), an organization formed to advance the freedom of Christians to assert the primacy of their beliefs over any conflicting obligations imposed by law. ADF is a staunch opponent of LGBT rights, battled on the ramparts to oppose marriage equality and to support the ability of businesses operated by Christians to refuse to sell their goods and services for same-sex weddings.  ADF has inserted itself into the “bathroom wars” by filing lawsuits on behalf of parents and allegedly cisgender students who oppose allowing transgender students to use single-sex facilities consistent with their gender identities.  When Judge Smith issued his decision last August, a federal magistrate judge in Illinois, Jeffrey T. Gilbert, had issued a report and recommendation to U.S. District Judge Jorge L. Alonso, which recommended denying ADF’s motion for a preliminary injunction against a similar school district policy in Students & Parents for Privacy v. United States Department of Education, 2016 WL 6134121 (N.D. Ill., Oct. 18, 2016), and Judge Smith cited and relied on Judge Gilbert’s analysis at various points in his decision.  Judge Alonso subsequently adopted Judge Gilbert’s Report and Recommendations, over the objections of ADF, on December 29, 2017, in Students & Parents for Privacy v. United States Department of Education, 2017 WL 6629520.

The plaintiffs in the Boyertown case argued three legal theories: first, that the district’s policy violates the constitutional privacy rights of non-transgender students under the 14th Amendment; second, that the school district’s policy violates Title IX’s requirement, as fleshed out in Education Department regulations, to provide separate restroom and locker room facilities for boys and girls; and third, that the policy violates Pennsylvania’s common law tort of invasion of privacy by intruding on the right of seclusion of non-transgender students.  Judge Smith found that the record compiled by the parties in response to the plaintiffs’ motion for preliminary injunction showed that the plaintiffs were unlikely to prevail on any of these claims.  The bulk of his lengthy opinion (which runs 83 pages, including about six pages of headnotes, in Lexis) is devoted to a careful delineation of the factual record upon which he based his legal analysis.

Judge Smith explored each of the three theories at length, rejecting ADF’s argument that high school students have some sort of fundamental constitutional right not to share restroom facilities with transgender students because of the possibility that a transgender student would see them in their underwear, and noting particularly that factual allegations by individual plaintiff students who had found themselves in restrooms with transgender students showed that even if such a “right” existed, it had not been violated in any instance.

As to the Title IX argument, plaintiff insisted that allowing transgender students to use the restrooms created a “hostile environment” for the non-transgender students, but Judge Smith, recurring to Judge Gilbert’s ruling in the Illinois case, observed that “the School District treats both male and female students similarly,” undercutting the argument that the District is discrimination in education opportunity “because of” the sex of the individual plaintiff students.   “The practice applies to both the boys’ and girls’ locker rooms and bathrooms,” wrote Smith, “meaning that cisgender boys potentially may use the boys’ locker room and bathrooms with transgender boys and cisgender girls potentially may use the girls’ locker room and bathrooms with transgender girls.  In addition, with regard to the transgender students, both transgender boys and transgender girls are treated similarly insofar as they, upon receiving permission from the School District, may use the locker rooms and bathrooms corresponding with their gender identity.  Moreover, the School District is not discriminating against students regarding the use of alternative facilities if students are uncomfortable with the current practice insofar as those facilities are open to all students who may be uncomfortable using locker rooms or multi-user facilities… The School District’s similar treatment of all students I fatal to the plaintiffs’ Title IX claim.”  Concluding on the Title IX point, Judge Smith wrote, “The plaintiffs have failed to cite to any case holding that a plaintiff can maintain a sexual harassment hostile environment claim when the allegedly sexually harassing party treats all individuals similarly and there is, as such, no evidence of gender/sex animus.”  Simply put, the District was not “targeting” any student for particular adverse treatment because of his or her sex.  Judge Smith also pointed out that the law of “hostile environment” as it has been developed under Title VII of the Civil Rights Act of 1964, to which courts refer in Title IX cases, sets a very high evidentiary bar for establishing a hostile environment, which he concluded could not be met by the plaintiffs’ factual allegations in this case.

As to the tort of invasion of privacy claim, Judge Smith noted that there were no allegations that any of the named defendants had personally invaded the privacy of any of the plaintiffs, as the plaintiffs’ factual allegations all related to two transgender students, identified as Student A and Student B, whose presence in locker rooms or restrooms was the subject of individual plaintiffs’ angst. But, of course, Students A and B were only present in those facilities because the District’s policy allowed them to be.  “The court does not deny that an individual seeks seclusion in a bathroom toilet stall from being viewed by other people outside of the stall,” wrote Judge Smith, pointing out that the cases cited by the plaintiffs in support of their common law privacy claims “involve alleged invasions of privacy in bathroom stalls,” usually involving police surveillance of public restrooms.  “Here,” Smith pointed out, “there are no allegations and the plaintiffs presented no evidence that any transgender student invaded their seclusion while they were in a bathroom stall.  And similarly, although the plaintiffs indicate that viewing a person while in a bathroom would be ‘considered “highly offensive” by any reasonable person,’ the case cited involved an intrusion into a single bathroom stall and not the presence of someone in the common area of a multi-user facility.”  After noting how the plaintiffs’ factual allegations about particular incidents involving transgender students in restrooms fell short of supporting the plaintiffs’ contentions about unwanted exposure of their bodies, Smith wrote, “the court does not find that a reasonable person would be offended by the presence of a transgender student in the bathroom or locker room with them, despite the possibility that the transgender student could possibly be in a state of undress more significant than Student A was in this case when the male plaintiffs same him.”  He concluded similarly regarding the other incidents described by the plaintiffs, and concluded they had not shown a likelihood that they would be able to establish liability under Pennsylvania’s invasion of privacy tort.

That could be the end of Smith’s analysis, since a finding that plaintiffs are likely to prevail would be necessary to ground a preliminary injunction against the District’s policy, but Smith, to be thorough, analyzed the irreparable harm factor that courts consider, concluding that because the District was providing single-user alternatives the individual plaintiffs would not be irreparable harmed if the policy was allowed to continue in effect. He concluded as well that because these two factors weighed against granting the injunction, there was no need to perform the “balance of harms” analysis that would necessarily follow if the plaintiffs had prevailed on the first two factors.

As noted above, the 3rd Circuit’s brief Judgement issued on May 24 described Judge Smith’s opinion as “exceptionally well-reasoned,” so it is likely that the “formal opinion” to follow will run along similar lines and probably quote liberally from Judge Smith.  Also, it would not be surprising were the court of appeals to give persuasive weight to decisions from other courts ruling on claims by transgender students to a right under Title IX and the 14th Amendment to use facilities consistent with their gender identity.  In the course of deciding those cases, the courts necessarily considered the same factual and legal issues presented by the Parents & Students cases.  In light of the judicial rulings so far in these “bathroom wars” cases, a consensus seems to have emerged in the federal judiciary that is part of a larger movement in the law in the direction of recognizing transgender civil rights claims under both the Equal Protection Clause in constitutional law and the statutory bans on discrimination because of sex.

In addition to ADF’s attorneys and the attorneys defending the school district, the court heard from ACLU attorneys representing the interests of transgender students in the Boyertown School District, including lead attorney Leslie Cooper with the ACLU LGBT Rights Project, lead attorney Mary Catherine Roper with the ACLU of Pennsylvania, and cooperating attorneys from Cozen O’Connor, a Philadelphia law firm.