On June 18, 2018, the Third Circuit Court of Appeals in Doe v. Boyertown Area School District upheld Boyertown Area School District's policy which allows transgender students to use restroom and locker rooms that match their gender identity rather than their biological sex.
Prior to the 2016-2017 school year, the school district required students to use locker and restroom facilities that aligned with their birth-determined sex. The district changed this policy in 2016, permitting transgender students to use facilities consistent with their gender identity.
The plaintiffs, several students who are cisgender – those who identify as being the same sex they were determined to have at birth – sought an injunction to stop enforcement of the district's new policy after they encountered transgender students in locker rooms or multi-user bathrooms. They alleged the policy violated their constitutional right to bodily privacy, violated Title IX, and Pennsylvania's invasion of privacy tort law. The District Court denied the requested injunction, finding that plaintiffs were unlikely to prevail on their claims. The Third Circuit agreed.
The Third Circuit's opinion is very useful to schools and to employers because it provides some guidance as to how these issues will be evaluated. The Court makes it clear that although an individual does in fact have "a constitutionally protected privacy interest in his or her partially clothed body," this privacy right is not absolute and must be weighed against other important competing governmental interests. In this regard, the Third Circuit recognized that the school district had a compelling interest in not discriminating against transgender students and found that the district's policy was narrowly tailored to support that interest. The Court also recognized that the district's interest in fostering an "environment of inclusivity, acceptance, and tolerance" is "an important educational function for both transgender and cisgender students."
The Court noted that the district's policy did not force any student to disrobe in the presence of any other student – cisgender or transgender. In addition to open locker rooms, the district provided private changing areas, such as shower stalls with curtains, and single user restrooms. The Court also noted that it did not believe that a person's privacy right could be violated by the mere presence of other students: "[i]n any event, we decline to recognize such an expansive constitutional right to privacy – a right that would be violated by the presence of students who do not share the same sex."
In rejecting the Title IX sex discrimination claims, the Court noted that the district's policy treated all students equally and did not discriminate on the basis of sex. Further, the plaintiffs did not allege any inappropriate conduct which might support a hostile environment claim. The mere presence of a transgender individual in the restroom or locker room does not create a hostile environment. In contrast, the inappropriate conduct of another student, whether cisgender or transgender, could create a hostile environment claim, but no such conduct was alleged by the plaintiffs here. The plaintiffs alleged only that "a cisgender student was harassed merely by a transgender student washing that student's own hands in a bathroom or changing in a locker room." Such behavior does not support a hostile environment claim.
Likewise, the Court affirmed the District Court's finding that the student-plaintiffs were unlikely to succeed on their common law invasion of privacy claims. The Third Circuit noted "that the presence of a transgender individual in a bathroom or locker room is not of the type of conduct that would be highly offensive to a reasonable person." School locker rooms, "by definition and common usage, [are] just not that private. School locker rooms and restrooms are spaces where it is not only common to encounter others in various stages of undress, it is expected ... As the Supreme Court has stated, 'public school locker rooms . . . are not notable for the privacy they afford."
The Court noted that the district has school counselors trained and licensed to address gender identity issues that transgender students commonly encounter, and the district requires students to meet with counselors to approve their use of the bathroom or locker room that aligned with the student's gender identity. Once approved, students can no longer use the facilities corresponding to their sex assigned at birth. Although the Third Circuit was complementary of this practice, it may be subject to challenge in the future because it arguably treats cisgender and transgender students differently. Cisgender students do not have to see the counselor nor seek and obtain permission to use the restroom corresponding with their gender identity.
The district has several multi-user bathrooms, each with individual toilet stalls with doors. And the district has single-user restrooms, some of which are available for students to use when changing their clothes. The locker rooms no longer have "gang showers," which have been replaced with single-user shower stalls with privacy curtains. A student who is uncomfortable changing in the locker room may change privately in one of the single-user facilities, the private shower stalls or the team rooms. In addition, the policy does not force transgender students to use special facilities, which the Court noted, would be akin to "publicly brand[ing] all transgender students with a scarlet 'T'".
In sum, given the Third Circuit's support of the Boyertown Area School District's policy, employers, schools, and others may want to consider modeling their own policies in a similar fashion.
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