School District Transgender Policy in Pennsylvania
Doe v. Boyertown Area Sch. Dist. 897 F.3d 518 (3rd Cir. 2018) petition for certiorari denied, 139 S. Ct. 2636 (2019).
Cisgender students challenged the Boyertown Area School Board’s transgender policy. On May 28, 2019, the U.S. Supreme Court denied a petition for certiorari seeking to appeal the decision of the U.S. Court of Appeals for the Third Circuit that upheld the practice of the Boyertown Area School District of accommodating transgender students by allowing them to use locker rooms and restrooms consistent with their gender identity. The decision affirmed the ruling of the U.S. District Court for the Eastern District of Pennsylvania, which denied an injunction sought by four cisgender students who brought a suit against the school district alleging that the district’s policy of allowing transgender students to access bathrooms and locker rooms consistent with their gender identity violated the cisgender students’ rights of bodily privacy, Title IX and state tort law.
Boyertown Area School Board Policy: Boyertown Area School District took measures to ensure that there were individual private restrooms and changing areas available to any student who was uncomfortable sharing facilities or wanted enhanced privacy. Additional measures included: 1) replacing “gang showers” with single-user showers with privacy curtains; 2) allowing students not to use the girls’ or boys’ locker rooms in changing for gym class; and 3) allowing students to change in single-user facilities, private shower stalls or team locker rooms.
Equally significant was that in implementing its practice, Boyertown Area School District: 1) required individual transgender students to meet with trained and licensed counselors who often consulted with additional counselors, building principals and school administrators; and 2) once given permission, required the student to use only the facilities aligned with their gender identity and not to use those matching their sex assigned at birth (or also allowing them to use single-user facilities).
Right to Privacy: The court acknowledged that a person has a constitutionally protected privacy interest in his or her partially clothed body, and only justified invasions of privacy by the government are actionable. It first found that the right to privacy does not extend to “protecting” cisgender students from sharing restrooms and locker rooms with transgender students. Boyertown students were not required to disrobe in front of other students, however if they chose to, they would be disrobing in a place commonly designated as a place to do so. The court found that policies excluding transgender students from using facilities aligned with their gender identities are seriously dangerous to the health and well-being of transgender individuals, and that the school district’s policy “served a ‘compelling state interest in not discriminating against transgender students’ and was narrowly tailored to that interest.”
Title IX Discrimination: The court agreed that “barring transgender students from restrooms that align with their gender identity would itself pose a potential” Title IX sex discrimination violation. Further, requiring them to use single-user facilities would be a stigmatizing action also amounting to discrimination. Because the Boyertown policy was gender-neutral, and there was no evidence of transgender students using the restrooms and locker rooms aligned with their gender identity in an inappropriate or invasive manner, cisgender students were not subjected to a sexually discriminatory hostile environment. The Boyertown policy did not create hostile environment discrimination and sought to reduce the risk of discrimination under Title IX.
Pennsylvania Lawsuits by Transgender Students Challenging School Bathrooms/Locker Room Policies
PSBA is aware of two lawsuits in Pennsylvania in which transgender students challenged policies prohibiting them from using bathrooms and locker rooms consistent with their gender identity and instead required them to use bathrooms and locker rooms consistent with sex determined at birth. In both cases, the U.S. District Courts ruled in favor of the transgender students at early stages of the litigation after determining that the students adequately stated Title IX and Equal Protection claims on which they could prevail. Both cases are briefly summarized below:
Evancho v. Pine-Richland Sch. Dist., 237 F.Supp.3d 267, 284 (W.D. Pa. 2017): Transgender students challenged the Pine-Richland School District requirement that students use either facilities that correspond to their biological sex or unisex facilities. In February 2017, the court issued a preliminary injunction against the school district. The court found that the requirement likely would cause the transgender students to succeed on a claim that their Equal Protection rights were violated. The case was settled in July 2017 upon the school board’s rescission of the policy and payment of monetary compensation and legal fees to the students, as well as an agreement by the board to update its antidiscrimination policy to include gender identity.
A.H. by Handlin v. Minersville Area Sch. Dist., 2019 WL 4875331 (M.D. Pa. 2019): A.H., a student who was born a biological boy but diagnosed with gender dysphoria and identifies as a girl, challenged Minersville Elementary School prohibiting A.H. from using girls’ restrooms at school and school-sponsored events. A.H. was diagnosed during kindergarten and transitioned to wearing girls’ clothing, had her name changed on her birth certificate, and the faculty began to use her chosen female name. A.H. used single-user/unisex restrooms and the district required her to use boys’ restrooms on field trips. The parties disputed the extent to which A.H. was required to use or chose to use unisex bathrooms at school, but it was undisputed that the school policy required her to use boys’ restrooms on field trips. The court granted summary judgment to A.H. and denied summary judgment to the school district pursuant to Title IX and the Equal Protection Clause. It granted an injunction to A.H., barring the school from its practices and requiring that she must be permitted to use bathrooms corresponding with her gender identity when on school field trips. It rejected to issue broad injunctive relief to uniformly require the school district to afford all transgender students the right to use facilities aligned with their gender identity, as there was no evidence of record on other transgender students in the district.