On Target June 2019
  • Beth Finkelstein Legal Corner

  • The United States Supreme Court Declined to Hear Appeal of PA Transgender School Bathroom Case  



    On May 28, 2019, the United States Supreme Court declined to hear an appeal of the ruling rendered by the United States Court of Appeals for the Third Circuit in Doe v. Boyertown Area School District.1 This case is significant to New Jersey school districts because the United States Supreme Court’s denial of certification permitted the Court of Appeals ruling from our circuit to stand. Accordingly, the Boyertown school district’s policy of allowing transgender students to use the bathrooms and locker rooms that conform to students’ gender identities will remain in effect.


    The specifics of the policy, as well as how the Boyertown High School’s building is structured, provides significant guidance to New Jersey school districts on how to comply with N.J.S.A. 18A:36-41, as well as the Guidelines of the New Jersey Department of Education (“DOE”).2 The goal of the statute and mandated guidance is to ensure a supportive and nondiscriminatory environment for transgender students.


    In Boyertown, cisgender students claimed their right to privacy was being violated by transgender students’ use of school bathrooms and locker rooms. Four student plaintiffs (three of whom were to be seniors in the 2017-18 school year) claimed that the district’s practice of permitting transgender students to use the bath/locker rooms consistent with their gender identity violated their constitutional right to privacy. The plaintiffs alleged that this practice also violated their rights under Title IX (subjecting them to a hostile environment) and their Pennsylvania common law right to privacy.


    During the 2016-17 school year, there were a handful of transgender students who were granted permission to use the bath/locker rooms of their gender identity. Before granting permission to a transgender student, the student had to first have a discussion with the guidance counselor; the counselor would then have a discussion with the grade-level assistant principal, and then with the principal. School administrators relied on the reporting of the student concerning the student’s gender identity. The district had made some structural renovations to their locker rooms, such as altering “gang-style” showers to individual showers. The district also added individual user bathrooms, and placed dividers between urinals. The practice of allowing students to use bath/locker rooms that conform to gender identities had not caused any disruption in school.


    One of the plaintiffs, Joel Doe, was in the boys locker and saw a student wearing shorts and a “sports bra.” Doe alleged that this made him feel embarrassed and humiliated, and he scrambled to quickly complete changing for gym class. The district was willing to make different accommodations for Doe. Jack Jones (another student) described a similar experience feeling shocked and humiliated upon seeing a transgender student in the locker room. He also stated that the transgender student got harassed.


    Mary Smith (another plaintiff) saw a transgender female using the girls’ locker room to change at the same time she was changing.  Smith indicated they were both fully clothed at the time. Mary Smith said that, upon seeing the other student, Smith “ran away.”


    Macy Roe (graduated in June 2017) alleged that she heard Jack Jones’ story and began trying to use the girls’ bathroom as little as possible. She stated that this made her feel uncomfortable, but when asked specifically, she was unable to identify any time when her privacy while changing her clothes or using the bathroom was actually violated.


    The District Court took extensive testimony from a medical behavioral health expert on transition issues. The expert explained that preventing transgender students from using facilities consistent with their gender identities sends a message that negates their life experience and choice. Under circumstances where students this age are prevented from using the bathroom that corresponds with their gender identities, they will refrain from using the bathroom altogether for the length of the school day.


    The District Court rejected the plaintiffs’ arguments and claims, and thereby refused to accept the theory that the plaintiffs have a fundamental right to bodily privacy from persons of the opposite sex under the Fourteenth Amendment to the United States Constitution.3 The plaintiffs asserted that the district’s practice violated their right to bodily privacy because it departs from the “universal tradition” which separates facilities for males and females, and places students in situations where private, intimate activities will be exposed to the opposite sex. The District Court held that the plaintiffs do not have a constitutional right that prevents them from sharing restrooms or locker rooms with transgender students. In addition, the District Court noted that it is always possible for the “uncomfortable” student to use an alternative facility to ensure that student’s privacy needs.4


    The District Court also rejected the plaintiffs’ claim under Title IX that permitting transgender students to use facilities consistent with their gender identities creates a hostile environment for cisgender students. It found that plaintiffs failed to meet their threshold burden of demonstrating that they were being discriminated against on the basis of sex. There can be no discrimination when all students are being treated in the same manner.5


    The United States Court of Appeals affirmed the ruling of the district court.6 In evaluating the alleged violation of the plaintiff’s constitutional right to privacy, the Court of Appeals upheld that the District Court’s finding that the constitutional right to privacy was not absolute. The Court of Appeals noted that regardless of the degree of the appellants’ state of undress at the time of the described encounters, the District Court correctly held that this would not be a constitutional violation because the school district’s policy served a compelling state interest in preventing discrimination against transgender students, and the policy was narrowly tailored to support that interest.7 The Court of Appeals explained that transgender students face extraordinary social, psychological, and medical risks justifying the school district’s compelling interest. In addition, the United States Supreme Court has routinely held that the state has a compelling interest in protecting the physical and psychological well-being of minors.


    The Court of Appeals did note that it empathizes with the appellants’ feelings of discomfort, and the Court offered that cisgender students always have the option of using the single-user bathrooms. Thus, the Court could not equate the cisgender students’ discomfort with that of the transgender students.8


    The Court of Appeals also rejected the claim that cisgender students’ right to privacy is being violated if they are being forced to attend to menstrual hygiene where members of the opposite biological sex are present, or if they are being forced to disrobe in the presence of students of the opposite biological sex. The Court of Appeals points to the great pains the district has gone to install privacy stalls and single-user bathroom facilities so that uncomfortable students can avail themselves of the same.


    Similarly, the Court of Appeals rejected the Title IX claim. Title IX prohibits discrimination based on sex in all educational programs that receive federal funding. There is an exception for separate bathrooms and locker rooms. Title IX also supports a cause of action for hostile environment harassment which has its origins in a series of cases decided under the Civil Rights Act. The Court of Appeals was not convinced that the appellants provided sufficient evidence to sustain a claim of harassment under a sex-neutral policy to support a Title IX claim.9


    Boyertown offers important insight into how a district might construct an appropriate policy to comply with the DOE guidelines. It also suggests possible building alterations that can better accommodate all students’ needs. It is best to consult your board attorney for specific guidance on the district’s transgender policy and all related issues.


    1  897 F.3d 518 ( 3rd Cir. 2018).

    2  https://nj.gov/education/students/safety/sandp/transgender/

    3  276 F.Supp 3d. 324, 330 (E.D. Pa 2017).

    4  Id. at 389.

    5  Id. at 396.

    6  897 F.3d 518 (3rd Cir. 2018).

    7  Id. 527.

    8  Id. at 528-529.

    9  Id. at 534-535.