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.Tags: 3rd Circuit Judge Patty Shwartz, 3rd Circuit Judge Roger Nygaard, 3rd Circuit Judge Theodore McKee, ACLU LGBT Rights Project, ACLU of Pennsylvania, Alliance Defending Freedom, bathroom access for transgender students, bathroom cases, Boyertown Senior High School, gender identity discrimination, Joel Doe v. Boyertown Area School District, restroom access for transgender students, right of privacy, sex discrimination by educational institutions, Title IX of Education Amendments of 1972, Title IX sex discrimination, Title VII sex discrimination, transgender students, U.S. District Judge Edward G. Smith, United States Supreme Court, Whitaker v. Kenosha Unified School District