This update includes important information about the U.S. Supreme Court’s 2020 Title VII decision in Bostock v. Clayton County, Ga., as well as the U.S. Supreme Court’s denial of certiorari on appeal from the U.S. Third Circuit Court of Appeals in Title IX case, Doe v. Boyertown Area School District.

PSBA urges its members to work with transgender students and their families to meet the needs of individual students and provide all students with a safe and supportive school environment. It is essential that public school districts in Pennsylvania stay informed about the evolving legal landscape of students’ rights and be aware of the emerging trend, issuing from court decisions and state agency guidelines, supporting transgender students’ rights specifically.

Brief Overview:

At state and federal levels, the rights and protections afforded to transgender students are constantly shifting. Courts have consistently displayed a trend of upholding policies that protect transgender students’ treatment in school consistent with their gender identities under Title IX. However, in other states, federal agencies have challenged policies that allow transgender athletes to participate in athletics consistent with their gender identities. The guidance on what school boards and districts must do to adhere to court rulings and agency guidelines is erratic and may be confusing, and thus requires constant attention.

Legal Basis for Transgender Students’ Claims

Title IX: Title IX is a federal statute that prohibits discrimination in government programs on the basis of sex. Public schools are subject to Title IX and complaints are investigated by the U.S. Department of Education’s Office for Civil Rights. Title IX regulations permit but do not require designation of sex-segregated facilities (bathrooms and locker rooms). Private lawsuit remedies can include injunctive relief, compensatory damages, attorneys’ fees and costs.

Pennsylvania Human Relations Act (PHRA): The state law prohibits discrimination on the basis of sex in employment, housing and places of public accommodation (which include all educational institutions under the supervision of the commonwealth). The Pennsylvania Human Relations Commission enforces the law and has issued guidance in accepting, investigating and adjudicating claims of discrimination based on sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity and gender expression.

Sexual Stereotyping Basis for Sex Discrimination Claim: In 1989, the U.S. Supreme Court recognized that making employment decisions based on sexual stereotyping could violate Title VII’s prohibition against sex discrimination by employers with 15 or more employees. In the dispute, a woman was subjected to an adverse employment decision because she was described as “macho” and needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Federal and Pennsylvania antidiscrimination laws do not expressly protect individuals from discrimination based on sexual orientation, but sex stereotyping arguments have been used successfully by homosexual plaintiffs to argue that their failure to live up to gender stereotypes resulted in adverse employment action. Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3rd Cir. 2009). Meanwhile, transgender students have successfully pursued Title IX claims alleging that they are being subjected to discriminatory sexual stereotyping. Additionally, the School Code regulations specifically prohibit discrimination on the basis of sexual orientation in access to public education. (22 Pa.Code § 12.4).

Hostile Environment Sex Discrimination: Title IX sex discrimination claims may arise from sexual harassment hostile environment claims, which requires plaintiffs to prove several elements:

  • The discriminatory harassment must be based on the student’s sex;
  • The behavior complained of must be unwelcome by the plaintiff;
  • The behavior complained of must be so severe, pervasive and objectively offensive that it undermines and detracts from the plaintiff’s educational experience, thus denying the plaintiff equal access to an educational institution’s resources and opportunities.

Hostile environment claims require a consideration of the totality of the circumstances, and outcomes vary based upon facts. For example, a violation may not be based on solitary acts such as teasing by other students, but a pattern of such behavior over time could become a basis for a claim. Some transgender students have successfully shown that a school requiring them to use facilities based on sex assigned at birth rather than gender identity constitutes hostile environment sex discrimination.

U.S. Constitutional Equal Protection Claims: The Equal Protection Clause of the 14th Amendment prohibits government action that affects identifiable classes of people differently. Courts must consider whether the classifications were permissible in connection with the purpose of the government action. There are three different levels of review based upon the classifications:

  • Highest Level (Strict Scrutiny): The classifications are based on race, national origin or some other classification that is protected by fundamental rights. The government must prove that the reason for the racial classifications is clearly identified, unquestionably legitimate and narrowly tailored to further a compelling government interest. This standard could apply to university programs that consider an applicant’s race.
  • Middle Level (Heightened/Intermediate Scrutiny): Under certain circumstances, government action involving minority or politically powerless groups may be subject to an intermediate level of scrutiny. The class affected must show a history of discrimination that has impacted it, that the classification frequently has no bearing on their contribution to society or ability to perform, and that the class exhibits obvious and immutable or distinguishing characteristics that define them as a discrete group. The government must show that its action affecting the class serves an important governmental objective and uses the least discriminatory means to achieve the objective. This standard applied when women sought admission to Virginia’s only single-sex college.
  • Lowest Level (Rational Basis): A court will look to whether the government had a rational basis for taking action based on a particular classification to carry out a legitimate governmental purpose. This standard could apply to a voting age of 18.

Equal Protection disputes brought by transgender students have caused disagreement on which level of review to apply. Courts have found that heightened scrutiny review applies either because of decisions relating to transgender students’ use of sex-segregated facilities or because transgender individuals are a class that should enjoy heightened scrutiny. Therefore, lower courts generally agree that school districts and other governmental entities that make decisions limiting a transgender student’s rights must show that it serves an important governmental objective and uses the least discriminatory means to achieve the objective.

Americans with Disabilities Act (ADA)/ § 504 of the Rehabilitation Act (§ 504): A student diagnosed with gender dysphoria, a recognized disability, who seeks reasonable accommodations may have a viable discrimination claim against a school district under the ADA or § 504 if a school district fails to meet such accommodations.