Boyertown Transgender Student Bathroom Access | KingSpry

Third Circuit Court Stalls Backdoor Attack on Transgender Bathroom Access

Posted on July 11th, 2018
by Ryan K. Fields

In Doe v. Boyertown Area School District, four high school students filed a lawsuit and sought a preliminary injunction to halt their school’s policy of permitting students to use bathroom and locker room facilities that align with their gender identity. The students brought three claims, arguing that the policy constituted a violation of their constitutional right to privacy, a violation of Title IX, and a violation of state tort law.

Background In The Case

While the newly adopted policy generally segregated locker room and bathroom facilities by gender identity, students were free to use any of the several single-user rooms on campus if they were uncomfortable using shared facilities for any reason. These bathrooms were available both before and after the policy change.

The plaintiffs claimed that, despite the availability of the single-user facilities, they risked changing in a room with a person whose current gender identity differed from their birth sex. The students claimed that this caused significant anxiety and discomfort, especially since they had known transgender students before and after their change in identity.

The lower court denied the students’ request for a preliminary injunction to halt the policy during the pendency of litigation. The plaintiffs then appealed the decision to the Third Circuit Court of Appeals. On June 18th, the Court issued an opinion affirming the lower court’s denial of an injunction.

The Plaintiffs’ Constitutional Claim

For their constitutional claim, the students argued that they have a constitutional right not to have their partially clothed bodies viewed by members of the opposite sex. They also claimed that the government cannot force minors to risk unconsented intimate exposure to the opposite sex as a condition for using private facilities.

The court acknowledged that a person has a constitutional privacy interest in his or her partially clothed body, but that, like any right to privacy, the right is not absolute. Only unjustified invasions of privacy are actionable. Therefore, the court needed to consider whether the policy adopted by BASD was narrowly tailored to serve a compelling government interest.

Relying on precedent, the court stated that the state has a compelling interest in protecting the physical and psychological well-being of minors. The testimony of mental health professionals and similar evidence showed that the risk to the well-being of transgender students who face discrimination in schools cannot be overstated. Transgender students face much higher risks of depression and suicide, as well as the physical risk associated with gender dysphoria. While the court did not seek to minimize or ignore the impact of the policy on the plaintiffs, it could not equate that impact to the drastic consequences faced by transgender students given the alternative.

The court determined that the policy was narrowly tailored because it treated all students equally, and the school provided single-user facilities for cisgender students who felt uncomfortable. Conversely, forcing transgender students to use the single-user facilities would in the court’s view undermine the compelling state interest, and would brand those students with a scarlet letter “T”.

The court refused to acknowledge a right of an individual not to risk intimate exposure to a person of the opposite sex. It felt that the plaintiffs’ concerns were not about transgender student conduct in the facilities, but with their mere presence; and that such a presence is no more offensive than that of cisgender students.

The Plaintiffs’ Title IX Claim

The plaintiffs also brought claims under Title IX of the Education Amendments of 1972. The court quickly disposed on the plaintiffs’ Title IX claims, stating that there is no authority that a sex-neutral policy can be a violation. It clarified that harassment which targets both sexes equally, as argued by the students, is not an accurate statement of the law under Title IX. Moreover, the mere presence of transgender students is not harassment, let alone pervasive.

While not technically before the court for consideration, the Third Circuit addressed whether a policy which required transgender students to use the bathroom or locker room which aligned with their birth sex would be a Title IX violation. The court stated that the U.S. Supreme Court has taken a wide view of “sex” under Title IX, and believed that denying a student to use a gender-aligned facility likely qualifies as a violation.

The Plaintiffs’ State Tort Claim

Finally, the court was similarly unpersuaded by the plaintiffs’ state tort law claim. The students’ claimed that the BASD policy was an intrusion upon seclusion under state law. A person commits this tort by intruding on the seclusion of another person, if such intrusion would be highly offensive to a reasonable person. Because the presence of a transgender individual would not be offensive to a reasonable person, the court held that the plaintiffs would not likely succeed on this claim.

Bottom Line for Schools

The Third Circuit all but stated that the policy adopted by the Boyertown Area School District is the correct and lawful way to manage bathroom and locker room access by transgender and cisgender students in Pennsylvania high schools. Based on the court’s strong endorsement, schools should contact their solicitor and immediately review their policies to ensure that they align with the inclusive policy outline in Doe.


This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.