Boyertown Transgender Decision Remains Law in PA

Many school districts in Pennsylvania have been updating their policies to provide more accommodations for students who identify as transgender. But the burning question has remained whether the Courts would support these new changes? Doe v. Boyertown Area School District, 276 F. Supp. 3d 324 (3d. Cir. 2018) has finally concluded and there is now a concrete answer. A bathroom/locker room policy allowing students to use the facility that is consistent with their gender identity is legally valid.

Facts of the Case:
Four high school students brought action against the District superintendent, the principal, and the District claiming that the District’s practice of permitting transgender students to access bathrooms/ locker rooms consistent with their gender identity violated their right to privacy under Fourteenth Amendment, their right of access to educational opportunities to programs, benefits, and activities under Title IX, and their Pennsylvania common law right of privacy preventing intrusion upon their seclusion while using bathrooms and locker rooms, and sought a preliminary injunction requiring the District to return to prior practice of requiring all students to only use the privacy facilities relating to their biological sex.

The bathroom policy in question was confirmed by the school board in 2017. It allowed students to use the restroom facility that matched their gender identity. The District employed this policy on a case-by-case basis, such that, any student who wished to receive accommodations had to first notify the school. The school’s guidance counselor would then speak with the student, and that counselor would provide a recommendation to the assistant principal. Then those conclusions were brought to the school’s principal. If all three administrators agreed, the student would then be able to use the restroom that was consistent with their gender identity. The school also has four to eight single user bathrooms for any student who was uncomfortable with the new policy.

The Decisions:

1. The Plaintiffs filed their suit against the District in the Eastern District Court of Pennsylvania on March 21, 2017.
2. After multiple evidentiary hearings, the Eastern District Court ruled in favor of the District: The Court found that District’s bathroom accommodations were legally valid.
3. On an appeal made by the Plaintiffs (Joel Doe, et al.), the United States Court of Appeals for the Third Circuit affirmed the rulings made by the lower court.
4. The decision by the Third Circuit Court—to affirm the District Court’s decision—was petitioned to be considered by the Supreme Court of the United States, but the petition was denied.

**This means that the decision of the Third Circuit is final and the active law for School Districts in Pennsylvania**

The Third Circuit Holdings:

1. Cisgender students (those students who are not transgender) do not have a broad fundamental right to bodily privacy from the opposite sex in those situations that the intimate body parts are not exposed. Even if cisgender students do have that specific right, the District’s bathroom/locker room policy did not violate it. The Circuit Court came to this conclusion for two reasons:
   1. The District has a compelling interest to protect the well-being of minors. This interest includes protecting transgender students from discrimination in the school environment because their exclusion can exacerbate gender dysphoria and cause negative educational outcomes.
   2. The District’s 2017 bathroom policy was narrowly tailored to protect the well-being of transgender students and did not violate any rights of any cisgender students. Any student who was uncomfortable with the policy could obtain additional privacy accommodations. The single-user bathrooms were available to them. The District never required their students to change in a place in which they were not comfortable. Additionally, there was no evidence that cisgender students who elected to use the single-user bathrooms would face the same emotional consequences as transgender students who are forced to use them.
2. The plaintiffs were unlikely to prevail on their Title IX claim.  The Third Circuit’s ruling mirrored the District Court in holding that:

Title IX prohibits schools from creating educational programs that discriminate on the basis of sex or policies that create a “hostile environment harassment”. Neither standard was met in this case because the bathroom policy was completely gender neutral. It allowed ALL students to use bathrooms and locker rooms that were consistent with their gender identity. Additionally, any student who was not comfortable with this procedure had access to greater privacy in the single-user bathrooms.

3. Finally, the Third Circuit Court found that the plaintiffs would be unlikely to prevail on a claim that the District’s conduct violated Pennsylvania Common Law by intruding on their seclusion. The Court held that:

A reasonable person would not be offended by the presence of a transgender student in the bathroom or locker room with them, considering privacy protections and alternative arrangements available at the high school. It was unlikely that practice would cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.

What does this mean for the 2019-2020 school year?

• The Third Circuit Ruling is final and the law for Pennsylvania School Districts. Bathroom policies mirroring that of Boyertown are valid and should be in place.
• School Districts should provide accommodations, on an individualized basis, to transgender students and allow them to use the restroom matching their gender identity to avoid a claim of sex discrimination.
• It is important to have a WRITTEN policy to follow in order to evaluate each individualized decision.
  • Ensure that the policy is specific and easy to administer.
  • Provide a general policy that the school district should accept the student’s assertion of gender identity where there is a consistent and uniform assertion of the gender identity, or any other evidence that the identity is sincerely held as a part of the student’s core identity
  • Have the student talk with a counselor who is trained to handle these specific matters.
  • Include documentation of the process in the student’s record.
  • Include at least one school administrator, preferably the principal in the decision
  • DO NOT require proof of medical treatment from the student upon their request for accommodation
• COMMUNICATE School District policy to all parents and students so they are aware of those accommodations