Doe v. Boyertown Area School District
On July 26, 2018, a three-judge panel of the U.S. Court of Appeals for the Third Circuit issued a written opinion, its second in the case, rejecting claims made by a conservative legal organization, the Independence Law Center, on behalf of six students at Boyertown Area Senior High School (Pennsylvania), arguing that their rights were violated because of having to encounter transgender teens using the restrooms or locker rooms at the school consistent with their gender identity. The Appeals Court also denied the request of the appellants, based on the first written opinion in the case – issued on June 18, 2018 – for an en banc rehearing of the case by all 12 judges who serve on the Third Circuit (en banc designates a hearing by all of the judges on an appellate court, rather than by a panel of three judges selected from among them).
In 2016, the Boyertown Area School District (BASD) implemented a new policy allowing students to use the restrooms or locker rooms consistent with their gender identity, including a procedure through which the transgender student applies and receives approval from a team of trained school counselors and administrators before receiving permission to use the gender-aligned facilities of their choice. The district also constructed numerous single-user bathrooms (eight at the high school), alternative dressing rooms attached to locker rooms, and private shower stalls, so that any student who felt uncomfortable in the presence of a transgender student could choose to use a private facility.
The decision joins a growing body of federal court case rulings nationwide affirming the rights of transgender students, a trend with clear implications for the development of policies by boards of education and school districts with regard to transgender students in the general school population and to student-athletes participating in school physical education and athletics programs.
The Lower Court Ruling
On August 25, 2017, the U.S. District Court for the Eastern District of Pennsylvania issued a written opinion denying the request of the Independence Law Center on behalf of its six plaintiff-students for an injunction staying implementation of the BASD policy.
The lower court’s decision included an extended discussion of the psychological and emotional impact of school policies that, unlike the inclusive strategy employed by the BASD, exclude transgender individuals from using school facilities such as restrooms, locker rooms and shower rooms, extensively citing studies by the American Medical Association, the American Academy of Pediatrics and the National PTA.
“Policies that exclude transgender individuals from privacy facilities that are consistent with their gender identities have detrimental effects on the physical and mental health, safety and well-being of transgender individuals. These exclusionary policies exacerbate the risk of anxiety and depression, low self-esteem, engaging in self-injurious behaviors, suicide, substance use, homelessness and eating disorders among other adverse outcomes. The risk of succumbing to these conditions is already very high in individuals who are transgender. In a survey of 27,000 transgender individuals, 40 percent reported a suicide attempt (a rate nine times higher than the general population). Yet, when transgender students are addressed with gender appropriate pronouns and permitted to use facilities that conform to their gender identity, those students reflect the same, healthy psychological profile as their peers. 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. 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.”
In addition to its analysis of the harm inflicted on transgender students by exclusionary policies, the District Court denied the requested injunction based upon its conclusion that the plaintiff-students had not proven the requisite legal criteria that they were likely to succeed on the merits and that they would be irreparably harmed absent the injunction.
To read the full-text of the District Court’s analysis and decision in its entirety, click here.
Appellate Decision #1
After losing in the lower court, the Independence Law Center appealed to the Third Circuit. On May 24, 2018, a three-judge panel heard oral arguments at the federal courthouse in Philadelphia and took the highly unusual step of, after only 20 minutes of deliberation, announcing its decision in the case. Typically, an appellate court issues its ruling through a written opinion that is released up to several months after a hearing, but in the Boyertown case, Third Circuit Judge Theodore McKee issued the decision orally from the bench, stating that he knew “how important the decision was to the high school students involved in the case, many of whom would be graduating within days.”
McKee’s announcement of the ruling was especially compelling for his pushback against the arguments of the appellants that the high school should be returned to the status quo because of the extent to which the appellants would feel uncomfortable having to interact with transgender students, referencing the similarity of that argument to the assertion in multiple civil rights and school segregation cases during the 1940s, ‘50s and ‘60s, that citizens would feel uncomfortable having to interact with persons of color if public facilities were to be integrated.
On June 18, 2018, the Third Circuit issued a written opinion setting forth the legal analysis supporting its ruling in favor of transgender students, concluding that “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. Nor does their presence infringe on the plaintiffs’ rights under Title IX.”
To read the full text of the Third Circuit’s written opinion issued on June 18, 2018, click here.
Appellate Decision #2
On July 2, 2018, the Independence Law Center filed an appeal with the Third Circuit requesting either an en banc rehearing by all 12 judges on the appellate court or by the three-judge panel that issued the original decision. On July 26, 2018, the Third Circuit denied the request for an en banc rehearing and the three-judge panel issued a revised written opinion, stating that “the Boyertown Area School District has adopted a very thoughtful and carefully tailored policy in an attempt to address some very real issues while faithfully discharging its obligation to maintain a safe and respectful environment in which everyone can both learn and thrive. The District Court correctly concluded that the appellants’ attempt to enjoin that policy based on an alleged violation of their privacy rights and their rights under Title IX and Pennsylvania tort law is not likely to succeed on the merits. The District Court was also correct in deciding that denying the injunction would not irreparably harm the appellants. For those reasons, we affirm the District Court’s denial of the requested preliminary injunction.”
The written opinion relied heavily on the appellate court’s analysis that the alternative facilities provided by the BASD – privacy stalls in multiple-user restrooms, single-user bathrooms, alternative dressing rooms attached to locker rooms and private shower stalls – were sufficient to protect the privacy of all students.
To read the full-text of the Third Circuit’s written opinion released on July 26, 2018, click here.
Note: As of the copy deadline for the October issue of High School Today, no request had been filed with the U.S. Supreme Court requesting that it hear an appeal of the Third Circuit’s decision in the Boyertown case.
Lee Green is an attorney and Professor Emeritus at Baker University in Baldwin City, Kansas, where for 30 years he taught courses in sports law, business law and constitutional law. He is a member of the High School Today Publications Committee. He may be contacted at Lee.Green@BakerU.Edu.