Third Circuit Upholds School Policy on Gender Identity Use of Facilities

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Doe v. Boyertown Area School District a unanimous panel of the Third Circuit upheld the school district's gender policy for facilities, affirming the district judge, against a challenge by some students that the inclusive policy violated their constitutional "bodily privacy" rights and Title IX.

The school policy allowed "transgender students to use bathrooms and locker rooms that are consistent with the students’ gender identities as opposed to the sex they were determined to have at birth." The court rejected the argument of some non-transgender students that the policy violated their right to privacy. Even if the school policy were to be subject to strict scrutiny, there was a compelling interest in the protection of transgender students and the means chosen were narrowly tailored. In assessing the claim of the cisgendered students who challenged the school policy, the court stated:

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 birth sex. Moreover, no court has ever done so. As counsel for the School District noted during oral argument, the appellants are claiming a very broad right of personal privacy in a space that is, by definition and common usage, 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. The facilities exist so that students can attend to their personal biological and hygienic needs and change their clothing.

Moreover, the court rejected the challengers' reliance on "a case involving an adult stranger sneaking into a locker room to watch a fourteen year-old girl shower," noting that it was "simply not analogous to the present situation "involving transgender students using facilities aligned with their gender identities after seeking and receiving approval from trained school counselors and administrators."

The court likewise rejected the Title IX and state tort law claims, again affirming the district judge.

While the court discusses and relies upon Whitaker v. Kenosha Unified School District, in which the Seventh Circuit in 2017 affirmed a preliminary injunction requiring the school to allow transgender students to access facilities consistent with their gender identity, the policy upheld here was the Boyertown school district's affirmative policy allowing such access. Thus, there seems to be a clear path for school districts to avoid losing if there is litigation.