The U.S. Supreme Court has declined to hear Doe v. Boyertown Area School District. The Court’s refusal to grant certiorari means that the Third Circuit’s decision allowing a Pennsylvania school district to adopt a transgender-friendly bathroom policy will remain in place.
Challenge to Transgender Bathroom Policy
Prior to the 2016–17 school year, Boyertown Area School District (School District) required students at Boyertown Area Senior High School (BASH) to use locker rooms and bathrooms that aligned with their birth-determined sex. BASH changed this policy in 2016 to permit transgender students to use restrooms and locker rooms consistent with their gender identity.
Four plaintiffs—proceeding pseudonymously under the names Joel Doe, Jack Jones, Mary Smith, and Macy Roe— sued the District after it adopted the new bathroom and locker room policy. The plaintiffs sought to enjoin BASH’s policy of permitting transgender students to use the bathrooms and locker rooms that aligned with their gender identities. First, the plaintiffs alleged that the School District’s policy violated their constitutional right to bodily privacy. In addition, they alleged that the School District’s policy violated Title IX of the Education Amendments of 1972(Title IX) and was contrary to Pennsylvania tort law.
The District Court refused to issue an injunction. It concluded that the plaintiffs had not demonstrated that they were likely to succeed on the merits of any of their claims and that plaintiffs had not shown that they would be irreparably harmed absent an injunction.
Third Circuit’s Decision
TheThird Circuit upheldthe district court’s refusal to enjoin the school district from allowing transgender students to use bathrooms and locker rooms consistent with the students’ gender identities.
In reaching its decision, the Third Circuit concluded that even if the School District’s bathroom policy implicated the plaintiffs’ constitutional right to privacy, the state had a compelling interest in not discriminating against transgender students. The federal appeals court also concluded that the School District’s policy was narrowly tailored to serve that interest. “The presence of transgender students in the locker and restrooms is no more offensive to constitutional or Pennsylvania-law privacy interests than the presence of the other students who are not transgender,” Judge Theodore McKee wrote on behalf of the court.
The Third Circuit went to conclude that preventing transgender students from using the facilities does cause them harm. “Forcing transgender students to use bathrooms or locker rooms that do not match their gender identity is particularly harmful. It causes severe psychological distress often leading to attempted suicide,” McKee wrote, citing district court testimony and friend-of-the-court briefs. “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 Third Circuit did acknowledge that the new transgender-friendly bathroom policy may cause some stress for cisgender students. However, it noted that the students could elect to use the school’s single-user bathroom facilities and locker room privacy stalls.
“We do not intend to minimize or ignore testimony suggesting that some of the appellants now avoid using the restrooms and reduce their water intake in order to reduce the number of times they need to use restrooms under the new policy,” McKee said. “Nor do we discount the surprise the appellants reported feeling when in an intimate space with a student they understood was of the opposite biological sex. We cannot, however, equate the situation the appellants now face with the very drastic consequences that the transgender students must endure if the school were to ignore the latter’s needs and concerns.”
The Third Circuit also concluded that there was no violation of Title IX. “The touchstone of both Title VII and Title IX claims is disparate treatment based on sex,” Judge McKee explained. “The School District’s policy allows all students to use bathrooms and locker rooms that align with their gender identity. It does not discriminate based on sex, and therefore does not offend Title IX.”
Key Takeaway for New Jersey School Districts
Because the Supreme Court has declined to consider the case, New Jersey districts can look to the Third Circuit’s decision in Boyertownfor guidance when drafting their own bathroom policies. In 2018, the New Jersey Department of Education also issued guidance regarding the rights of transgender students, and advised that school districts “shall allow a transgender student to use a restroom or locker room based on the student’s gender identity.”
For more information about the Third Circuit’s decision in Doe v. Boyertown Area School District or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Government Law Group.