Federal court reaffirms Pennsylvania school district’s pro-transgender restroom policy
But four of the 12 judges say it's still unclear whether Title IX requires schools to adopt such policies
The 3rd U.S. Circuit Court of Appeals has reaffirmed its earlier decision supporting a Pennsylvania school district that wants to allow transgender students to access facilities consistent with their gender identity.
In May, the appeals court upheld a lower court’s decision to throw out a lawsuit brought by a group of parents and cisgender students — with support from national conservative activist organizations that oppose LGBTQ rights — arguing that the Boyertown Area School District’s policy violated their children’s privacy and constitutional rights.
Lead plaintiff “Joel Doe” and his parents claimed that he was made uncomfortable after finding out he had to share a locker room with a transgender boy, whom he considers to be a girl.
Doe’s lawyers, with the Alliance Defending Freedom and Independence Law Center argued that the district’s policy violated cisgender students’ right to bodily privacy under the Constitution, Pennsylvania state law requiring separate facilities for students of different biological sexes, and was a form of “sexual harassment.”
Much of the initial complaint focused around Doe’s contention that school administration officials had told him to “tolerate” having to share spaces with the transgender boy and try to make it as “natural” as he can. However, once he was cross-examined in court, he admitted that administrators had offered him the option of a single-stall restroom as an alternative, and that he could have used his regular school locker to store his clothes while he was in gym if he felt too uncomfortable using communal locker rooms.
Both the district court and the 3rd Circuit rejected many of the arguments made by the cisgender students, including that the policy somehow violated their privacy or constitutional rights. The appeals court’s original decision was notable for the fact that Judge Theodore McKee was the first federal appeals court judge to issue an opinion using the word “cisgender,” thereby acknowledging the idea that gender identity does not necessarily match their biological sex at birth.
In its revised opinion, the appeals court reiterated that schools may treat transgender boys and girls like other boys and girls.
“Policies that exclude transgender individuals from privacy facilities that are consistent with their gender identities ‘have detrimental effects on the physical and mental health, safety, and well-being of transgender individuals,'” the court wrote, citing an amicus brief in favor of the district’s policy penned by several medical and mental health organizations.
“Forcing transgender students to use bathrooms or locker rooms that do not match their gender identity is particularly harmful. … The result is that those students ‘avoid going to the bathroom by fasting, dehydrating, or otherwise forcing themselves not to use the restroom throughout the day.’ This behavior can lead to medical problems and decreases in academic learning,” the judges added.
“We appreciate that there is testimony on this record that the cisgender plaintiffs have also reduced water intake, fasted, etc. in order to reduce the number of times they need to visit the bathroom so they can minimize or avoid encountering transgender students there. For reasons we discuss below, we do not view the level of stress that cisgender students may experience because of appellees’ bathroom and locker room policy as comparable to the plight of transgender students who are not allowed to use facilities consistent with their gender identity. Given the majority of the testimony here and the District Court’s well-supported findings, those situations are simply not analogous.”
The judges said they do not intend to minimize the testimony from cisgender students arguing that they are uncomfortable sharing facilities with transgender students. But they say the situations just are not equivalent.
“The School District already provides single-user accommodations for all students. Any student who is uncomfortable changing around their peers in private spaces, whether transgender or cisgender, may change in a bathroom stall, single-user bathroom, or the private team rooms. The appellants seemingly admit that these accommodations ‘resolve all privacy concerns,'” the 3rd Circuit notes. “Yet they insist that the policy should be changed to require that transgender students use individual bathrooms if they do not wish to use the communal facilities that align with their birth-determined sex.
“Not only would forcing transgender students to use single-user facilities or those that correspond to their birth sex not serve the compelling interest that the School District has identified here, it would significantly undermine it.”
They also note that Boyertown’s policy does not force any student to disrobe in the presence of any other student, and offers additional privacy options for those who request them.
The American Civil Liberties Union once again celebrated the appeals court’s decision.
“All twelve judges on the court agreed that Boyertown’s practice of allowing transgender students to use restrooms and locker rooms that match their gender identity does not violate anyone’s privacy. Four judges said the court should not have addressed the separate question of whether Boyertown’s practice is legally required by Title IX. But they agreed that Boyertown’s local school board had the right to allow transgender students to use facilities that match their gender identity,” Ria Tabacco Mar, a senior staff attorney with the ACLU, said in a statement.
“Today’s opinion, like the opinion issued last month, sends a powerful message of support to transgender students, who all too often experience discrimination, harassment, and violence because of their gender identity,” she added. “The court found that the school board had a compelling interest in protecting transgender students from these harms and promoting inclusion.”
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