Third Circuit Rejects Challenge to Policy Allowing Transgender Students to Use Bathrooms Consistent With Gender Identity

On June 18, 2018, the United States Court of Appeals for the Third Circuit issued a precedential opinion upholding the District Court’s denial of an injunction seeking to block a Pennsylvania school district’s policy allowing transgender students to use bathrooms and locker rooms consistent with the students’ gender identity as opposed to the sex they were determined to have at birth. See Joel Doe v. Boyertown Area School District, No. 17-3113 (3d Cir. June 18, 2018).

In 2016, the Boyertown Area School District changed its policy and allowed students attending the Boyertown Area Senior High School (“BASH”) to use restrooms and locker rooms consistent with their gender identity as opposed to their birth-determined sex. The Third Circuit noted that the School District adopted a careful, student-specific analysis and permission under this policy was granted on a case-by-case basis.

The Plaintiffs, four students attending BASH, initiated a lawsuit against the School District seeking to enjoin BASH’s policy of permitting transgender students to use bathrooms and locker rooms that coincide with their gender identities. The Plaintiffs alleged the School District’s policy violated (a) their constitutional right to privacy; (b) Title IX; and (c) Pennsylvania tort law for intrusion upon seclusion.

The District Court refused to grant Plaintiffs’ injunctive relief finding the Plaintiffs were unlikely to succeed on the merits and that they did not demonstrate they would suffer irreparable harm. The District Court also held that even if the School District’s policy implicated Plaintiffs’ constitutional right to privacy, the state had a compelling interest in not discriminating against transgender students, and that policy was narrowly tailored to serve that interest.

The District Court rejected Plaintiffs’ Title IX claims finding the policy did not discriminate on the basis of sex because it applied equally to all students – both cisgender male/female students as well as transgender male/female students.  The District Court also found that the mere presence of a transgender student in a locker room or bathroom does not objectively rise to Title IX harassment.  For similar reasons, the District Court also declined to issue an injunction under the tort of intrusion upon seclusion.

In a thorough opinion, the Third Circuit affirmed the District Court’s rulings. Notably, the Third Circuit’s opinion focused on the “extraordinary social, psychological, and medical risks” facing transgender students and how these risks supported the state’s compelling interest in shielding transgender students from discrimination.  The Court also noted the School District’s policy “fosters an environment of inclusivity, acceptance, and tolerance.”

With respect to Plaintiffs’ Title IX and tort of intrusion upon seclusion claims, the Third Circuit latched onto the fact that the School District’s policy allows all students to use bathrooms and locker rooms that align with their gender identity – i.e. the policy does not discriminate based on sex. The Court also noted that the Plaintiffs failed to meet their burden of establishing that the mere presence of transgender students in bathrooms and locker rooms constituted sexual harassment so severe, pervasive or objectively offensive that it interfered with Plaintiffs’ equal access to the School District’s resources and opportunities.

Finally, of note, the Third Circuit acknowledged it was not minimizing the discomfort of the Plaintiffs. However, the Court found no irreparable harm could be shown where, inter alia, students had the option to use singer-user facilities.

If you would like guidance on how the Third Circuit’s opinion may affect your organization, you should contact a member of Archer & Greiner’s Labor and Employment Group in Haddonfield, N.J. at (856) 795-2121; Philadelphia, Pa. at (215) 963-3300; Princeton, N.J. at (609) 580-3700; Hackensack, N.J. at (201) 342-6000; or Wilmington, Del. at (302) 777-4350.