On May 28, 2019, the United States Supreme Court declined to review a decision issued by the Third Circuit Court of Appeals (“Third Circuit”) in Doe v. Boyertown Area School District, letting stand a Pennsylvania school district policy supportive of transgender students’ equal access to facilities. Specifically, the United States Supreme Court opted not to review a school district policy which allowed students to access restrooms and locker rooms consistent with their gender identity.
In Boyertown, the Third Circuit upheld the district court’s decision not to enjoin a policy of the Pennsylvania’s Boyertown Area School District (“District”) that allowed students equal access to facilities, i.e., restrooms and locker rooms, consistent with their gender identity (“Equal Access Policy”). The District adopted the Equal Access Policy during the 2016/2017 school year in compliance with guidance issued on May 13, 2016 by the Obama Administration under Title IX of the Education Amendments of 1972 (“Title IX”), a federal law that prohibits discrimination based on sex. The Obama Administration guidance provided, in part, that transgender students must be allowed to access facilities, such as restrooms and locker rooms, consistent with their gender identity. The Trump Administration subsequently rescinded the 2016 guidance on February 22, 2017.
In reaching its decision, the three-judge panel of the Third Circuit ruled that the district court correctly decided not to stop the District’s Equal Access Policy because the Plaintiffs/Appellants, who were students of the District, were not likely to succeed on the merits of the case by arguing that the policy violated their constitutional right to bodily privacy or their right to be free from sex discrimination and sexual harassment under Title IX. The Third Circuit and the district court similarly rejected the Plaintiffs’/Appellants’ argument that the Access Policy violated Pennsylvania’s state law governing invasion of privacy.
The Supreme Court’s decision not to hear Doe v. Boyertown Area School District does not have precedential value. However, the decision is important because it signals that neither Title IX nor the constitutional right to bodily privacy necessarily prohibits school districts across the nation from adopting similar policies in support of transgender students’ access to facilities consistent with their gender identity.
California law already makes clear that school districts are required to allow students to use facilities consistent with their gender identity regardless of their sex assigned at birth. See Cal. Educ. Code § 221.5(f). Several other states have adopted similar laws or policies that allow students to use facilities based on their gender identity.
A Closer Look at the “Boyertown” Case
In Doe v. Boyertown Area School District, 897 F.3d 518 (3d Cir. 2018), Plaintiffs/Appellants, District students by and through their parents/guardians, alleged, in relevant part, that the District’s Equal Access Policy violated their constitutional right to bodily privacy and subjected them to sexual harassment in violation of protections afforded under Title IX. The Third Circuit disagreed and concluded that “the presence of transgender students in the locker and restrooms is not more offensive to constitutional or Pennsylvania-law privacy interests than the presence of other students who are not transgender. Nor does their presence infringe on the plaintiffs’ rights under Title IX.” Id. at 521.
The Third Circuit upheld the district court’s decision to deny the request for an injunction because the Plaintiffs/Appellants failed to demonstrate that they were likely to succeed on the merits. The Third Circuit further affirmed the district court’s conclusion because the Plaintiffs/Appellants failed to demonstrate they would have been irreparably harmed if the injunction were not granted.
The Third Circuit agreed with the district court’s analysis that, “even if the [District’s Equal Access Policy] implicated the 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.” Id. at 525.
Constitutional Right to Bodily Privacy
The Plaintiffs/Appellants argued that the District’s Equal Access Policy violated their constitutional right to bodily privacy. Specifically, they claimed that the policy subjected them to “unconsented intimate exposure to the opposite sex as a condition for using the very facilities set aside to protect their privacy.” Id. at 531. The Third Circuit recognized that a student has a constitutionally protected privacy right to avoid “disclosure of personal matters,” which includes “privacy interest in his or her partially clothed body.” In support of their position, the Plaintiffs/Appellants argued that the constitutional right to privacy was violated because the District’s Equal Access Policy “permitted them to be viewed by the members of the opposite sex while partially clothed.” Id. at 527. The Third Circuit affirmed the district court’s rejection of this argument because the policy served a compelling interest in preventing discrimination against transgender students, and the policy “was narrowly tailored to that interest.” Id. at 528.
The Third Circuit noted that “the constitutional right to privacy is not absolute” and must be weighed against other “important competing governmental interests.” Id. at 528. In examining the state’s compelling interest to prevent discrimination, the Third Circuit underscored the “extraordinary social, psychological, and medical risks” faced by transgender students. Id. at 528. By way of example, the Third Circuit highlighted that, “[i]in a survey of 27,000 transgender individuals, 40% reported a suicide attempt (a rate nine times higher than the general population.” Id. at 523 (citing Sandy E. James et al., Nat’l Center for Transgender Equality, Report of the 2015 U.S. Transgender Survey 2014 (2016).) The Third Circuit further noted that exclusionary policies prohibiting a transgender individual’s access to facilities consistent with gender identity “exacerbate the rise of ‘anxiety and depression, low self-esteem, engaging in self-injurious behaviors, suicide, substance use, homelessness, and eating disorders among other adverse outcomes.’” Id. at 523 (citing Br. for Amici Curiae American Academy of Pediatrics, American Medical Association, et. al., 18). The Third Circuit agreed that the District’s Equal Access Policy, in addition to protecting transgender students, advances the interest of fostering an overall environment of inclusivity, acceptance, and tolerance that benefits all students.
With regard to balancing the privacy interests of all students, the Third Circuit noted that the District provided single-user accommodations, which were accessible to everyone. These single use options appropriately addressed the interests of those students who were uncomfortable disrobing in front of other students. The Third Circuit rejected the Plaintiffs’/Appellants’ argument that the District should adopt a policy compelling transgender students to use individual restrooms if they chose not to use restrooms aligned with their sex assigned at birth as an argument undermined the state’s compelling interest. The Third Circuit explained, “Adopting the appellants’ position would very publicly brand all transgender students with a scarlet ‘T,’ and they should not have to endure that as the price of attending their public school.” Id. at 530. Ultimately, the Third Circuit agreed with the district court that that Plaintiffs’/Appellants’ were “unlikely to succeed in establishing their right to privacy based on a transgender student potentially viewing them in a state of undress in a locker room or restroom.” Id. at 530-531.
Rights Under Title IX
The Plaintiffs/Appellants also argued that the District’s Equal Access Policy violated Title IX. The Third Circuit affirmed the district court’s rejection of this argument because the Equal Access Policy treated all students equally irrespective of sex. Their challenge under Title IX was rejected on the additional basis that the elements of a “hostile environment harassment” claim were not met.
With regard to the hostile harassment environment claim, the Third Circuit noted that a plaintiff must establish harassment so severe, pervasive, or objectively offensive that it effectively denies his/her access to the institution’s educational resources and opportunities. Second, the Third Circuit stated the alleged harassment must be related to the plaintiff’s sex. The Third Circuit agreed with the district court’s finding that the Plaintiffs’/Appellants “had not met their burden of establishing that the mere presence of transgender students in the bathrooms and locker rooms constitutes sexual harassment.” Id. at 535. The Court also found that the Plaintiffs’/Appellants’ claim failed because the alleged harassment could not be based on their sex given that the District’s Equal Access Policy applied uniformly to all students irrespective of their sex. Thus, even if harassment did occur, it would not be a Title IX violation since such a claim requires a showing of disparate treatment based on sex.
California school districts must ensure that policies and practices are in place to ensure that all students, including transgender students, are able to learn in a safe educational environment, free from discrimination and harassment. California prohibits discrimination based on sex, gender identity, and gender expression. California law also makes clear that school districts must allow students to use facilities, such as restrooms and locker rooms, consistent with their gender identity. School districts should be mindful to comply with these state legal obligations even though the scope and breadth of the rights afforded to transgender students under federal law are ever-changing.
To address issues of privacy for all students, school districts may consider establishing single-user facilities, enhancing privacy features within existing facilities (i.e., individual shower stalls), and implementing other privacy measures that accommodate the expressed needs of students on a case-by-case basis. With the ultimate goal of creating a safe and inclusive educational environment for all students, school districts should also ensure that:
- Their Title IX Coordinator’s name and contact information are known to the greater school community using different means of communication, i.e., board policies, district websites, orientation packets, student/parent handbooks, etc.;
- All District personnel are trained on anti-discrimination and anti-harassment board policies and administrative regulations, including those specific to the interests of transgender students; and
- All District parents, including Limited English Proficient parents, and all students are informed about the District’s anti-discrimination and harassment complaint process.
While transgender students are protected under federal law from sex discrimination and sexual harassment as a general matter, the legal landscape with regard to their rights to access facilities consistent with their gender identity is ever-changing under federal law, specifically Title IX. However, the Supreme Court’s decision not to review an appeal from the Third Circuit in Boyertown does signal that policies that are supportive of transgender students’ access to facilities do not necessarily violate the protections afforded to other students under Title IX or the constitutional right to bodily privacy.