Joel Doe v. Boyertown Area School District , 897 F.3d 518 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-3113
_____________
JOEL DOE, A Minor, by and through his Guardians
John Doe and Jane Doe; MACY ROE; MARY SMITH;
JACK JONES, A minor, by and through his Parents
John Jones and Jane Jones, CHLOE JOHNSON, A minor
by and through her Parent Jane Johnson; JAMES JONES, A
Minor by and through his Parents John Jones and Jane Jones,
Appellants
v.
BOYERTOWN AREA SCHOOL DISTRICT;
DR. BRETT COOPER, In his official capacity as Principal;
DR. E. WAYNE FOLEY, In his official capacity as Assistant
Principal; DAVID KREM, Acting Superintendent
PENNSYLVANIA YOUTH CONGRESS FOUNDATION
(Intervenor in D.C.)
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 5-17-cv-01249)
District Judge: Honorable Edward G. Smith
_____________
Argued May 24, 2018
____________
Before: McKEE, SHWARTZ and NYGAARD,
Circuit Judges.
(Opinion Filed July 26, 2018)
______________
Cathy R. Gordon
Jacob F. Kratt
Litchfield Cavo
420 Fort Duquesne Boulevard
One Gateway Center, Suite 600
Pittsburgh, PA 15222
Randall L. Wenger [ARGUED]
Jeremy L. Samek
Independence Law Center
23 North Front Street
Harrisburg, PA 17101
Kellie M. Fiedorek
Christiana M. Holcomb
Alliance Defending Freedom
440 First Street, N.W., Suite 600
Washington, D.C. 20001
Gary S. McCaleb
Alliance Defending Freedom
15100 North 90th Street
Scottsdale, AZ 85260
Counsel for Appellants
2
Matthew J. Clark
Foundation for Moral Law
1 Dexter Avenue
Montgomery, AL 36104
L. Theodore Hoppe, Jr.
2 South Orange Street, Suite 215
Media, PA 19063
Counsel for Amicus Appellants’
Michael I. Levin [ARGUED]
David W. Brown
Levin Legal Group, P.C.
1800 Byberry Road, Suite 1301
Huntingdon Valley, PA 19006
Attorneys for Appellees
Mary Catherine Roper
American Civil Liberties Union of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19102
Ria Tabacco Mar [ARGUED]
Leslie Cooper
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004
Amanda L. Nelson
Cozen O’Connor
45 Broadway, 16th Floor
New York, NY 10006
3
Harper Seldin
Cozen O’Connor
1650 Market Street
One Liberty Place, Suite 2800
Philadelphia, PA 19103
Attorneys for Intervenor–Appellee
Alice O. Brien
National Education Association
Office of General Counsel
1201 16th Street, N.W.
Washington, DC 20036
Omar Gonzalez-Pagan
Lambda Legal
120 Wall Street, 19th Floor
New York, NY 10005
Cynthia C. Robertson
Pillsbury Winthrop Shaw Pittman
1200 17th Street, N.W.
Washington, DC 20036
Aaron M. Panner
Kellogg Hansen Todd Figel & Frederick
1615 M. Street N.W., Suite 400
Washington, DC 20036
Maureen P. Alger
Kara C. Wilson
Cooley
3175 Hanover Street
Palo Alto, CA 94304
4
Shannon P. Minter
Amy Whelan
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA 94102
Nicholas S. Feltham
Drinker Biddle & Reath
One Logan Square, Suite 2000
Philadelphia, PA 19103
Terry L. Fromson
Women’s Law Project
125 South 9th Street, Suite 300
Philadelphia, PA 19107
Mary J. Eaton
Wesley R. Powell
Willkie, Farr & Gallagher
787 Seventh Avenue
New York, NY 10019
Ryan M. Moore
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Jesse R. Loffler
Janice Mac Avoy
Fried Frank Harris Shriver & Jacobson
One New York Plaza
New York, NY 10004
Counsel for Amicus Appellees’
5
____________
OPINION OF THE COURT
______________
McKEE, Circuit Judge.
This appeal requires us to decide whether the District
Court correctly refused to enjoin the defendant School District
from allowing 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 plaintiffs—a group of high school students who
identify as being the same sex they were determined to have at
birth (cisgender)—believe the policy violated their
constitutional rights of bodily privacy, as well as Title IX, and
Pennsylvania tort law. As we shall explain, we conclude that,
under the circumstances here, 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.
In an exceedingly thorough, thoughtful, and well-
reasoned opinion, the District Court denied the requested
injunction based upon its conclusion that the plaintiffs had not
shown that they are likely to succeed on the merits and because
they had not shown that they will be irreparably harmed absent
the injunction. Although we amplify the District Court’s
reasoning because of the interest in this issue, we affirm
6
substantially for the reasons set forth in the District Court’s
opinion.
I. BACKGROUND
A. The Setting.
Because such seemingly familiar terms as “sex” and
“gender” can be misleading in the context of the issues raised
by this litigation, we will begin by explaining and defining
relevant terms. Our explanation is based on the District Court
testimony of Dr. Scott Leibowitz, an expert in gender
dysphoria and gender-identity issues in children and
adolescents, and the findings that the District Court made
based upon that expert’s testimony.
“Sex” is defined as the “anatomical and physiological
processes that lead to or denote male or female.”1 Typically,
sex is determined at birth based on the appearance of external
genitalia.2
“Gender” is a “broader societal construct” that
encompasses how a “society defines what male or female is
within a certain cultural context.”3A person’s gender identity
is their subjective, deep-core sense of self as being a particular
gender. 4 As suggested by the parenthetical in our opening
paragraph, “cisgender” refers to a person who identifies with
the sex that person was determined to have at birth.5 The term
1
App. 500.
2
App. 375.
3
App. 500.
4
App. 375.
5
App. 393, 550.
7
“transgender” refers to a person whose gender identity does not
align with the sex that person was determined to have at birth.6
A transgender boy is therefore a person who has a lasting,
persistent male gender identity, though that person’s sex was
determined to be female at birth.7 A transgender girl is a person
who has a lasting, persistent female gender identity though that
person’s sex was determined to be male at birth.8
Approximately 1.4 million adults—or 0.6 percent of the
adult population of the United States—identify as
transgender.9 Transgender individuals may experience “gender
dysphoria,” which is characterized by significant and
substantial distress as a result of their birth-determined sex
being different from their gender identity. 10 Treatment for
children and adolescents who experience gender dysphoria
includes social gender transition and physical interventions
such as puberty blockers, hormone therapy, and sometimes
surgery.11
“Social gender transition” refers to steps that
transgender individuals take to present themselves as being the
gender they most strongly identify with. 12 This typically
includes adopting a different name that is consistent with that
gender and using the corresponding pronoun set, wearing
clothing and hairstyles typically associated with their gender
6
App. 375.
7
App. 2107.
8
App. 2107.
9
App. 376.
10
App. 376-77, 379.
11
App. 2110.
12
App. 2110.
8
identity rather than the sex they were determined to have at
birth, and using sex-segregated spaces and engaging in sex-
segregated activities that correspond to their gender identity
rather than their birth-determined sex. 13 For transgender
individuals, an important part of social gender transition is
having others perceive them as being the gender the
transgender individual most strongly identifies with.14 Social
gender transition can help alleviate gender dysphoria and is a
useful and important tool for clinicians to ascertain whether
living in the affirmed gender improves the psychological and
emotional function of the individual.15
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.” 16 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.” 17 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% reported a suicide attempt (a rate
13
App. 2110.
14
App. 2110.
15
App. 2111.
16
Br. for Amici Curiae American Academy of Pediatrics,
American Medical Association, et al., 17.
17
Id. at 18 (quoting Am. Psychol. Ass’n & Nat’l Ass’n of
Sch. Psychologists, Resolution on Gender and Sexual
Orientation Diversity in Children and Adolescents in Schools
4 (2015)).
9
nine times higher than the general population). 18 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.”19
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.”20 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
18
Id. at 18–19 (citing Sandy E. James et al., Nat’l Center for
Transgender Equality, Report of the 2015 U.S. Transgender
Survey 114 (2016)).
19
Br. for Amici Curiae of the National PTA, GLSEN, et al., 7
(citing Lily Durwood et al., Mental Health and Self Worth in
Socially Transitioned Transgender Youth, 56 J. of the Am.
Academy of Child & Adolescent Psychiatry 116, 116 (2017)).
20
Br. for Amici Curiae of the National PTA, GLSEN, et al.,
18 (citing Max Kutner, Denying Transgender People
Bathroom Access Is Linked to Suicide, NEWSWEEK (Dec.
16, 2016); Kristen Clements-Nolle, et al., Attempted Suicide
Among Transgender Persons: The Influence of Gender-Based
Discrimination and Victimization, 51 Journal of
Homosexuality 53, 63-65 (2006)).
10
day.” 21 This behavior can lead to medical problems and
decreases in academic learning.22
We appreciate that there is testimony on this record that
the cisgender plaintiffs have also reduced water intake, fasted,
etc. in order to reduce the number of times they need to visit
the bathroom so they can minimize or avoid encountering
transgender students there. For reasons we discuss below, we
do not view the level of stress that cisgender students may
experience because of appellees’ bathroom and locker room
policy as comparable to the plight of transgender students who
are not allowed to use facilities consistent with their gender
identity. Given the majority of the testimony here and the
District Court’s well-supported findings, those situations are
simply not analogous.
Dr. Leibowitz testified that forcing transgender students
to use facilities that are not aligned with their gender identities
“chips away and erodes at [the individual’s] psychological
wellbeing and wholeness.” 23 It can exacerbate gender
dysphoria symptoms by reinforcing that the “world does not
21
Br. for Amici Curiae of the National PTA, GLSEN, et al.,
18 (citing Joseph Kosciw, et al., The 2015 National School
Climate Survey: The Experiences of Lesbian, Gay, Bisexual,
Transgender, & Queer Youth in Our Nation’s Schools 12-13,
GLSEN (2016)).
22
Id. at 18–19 (citing Jody L. Herman, Gendered Restrooms
and Minority Stress: The Public Regulation of Gender and Its
Impact on Transgender People’s Lives, 19 J. of Pub. Mgmt.
& Soc. Pol’y 65, 74–75 (2013)).
23
App. 395.
11
appreciate or understand” transgender students.24 In short, it is
“society reducing them to their genitals.”25 Dr. Leibowitz also
noted that “hundreds of thousands of physicians in the United
States . . . take the position that individuals with gender
dysphoria should not be forced to use a restroom that is not in
accordance with their gender identity.” 26 We have already
noted the disparate suicide rates between transgender and
cisgender students.
Prior to the 2016–17 school year, Boyertown Area
School District required students at Boyertown Area Senior
High School (“BASH”) to use locker rooms and bathrooms
that aligned with their birth-determined sex.27 BASH changed
this policy in 2016 and for the first time permitted transgender
students to use restrooms and locker rooms consistent with
their gender identity. In initiating this policy, BASH adopted a
very careful process that included student-specific analysis.
Permission was granted on a case-by-case basis.28
The District required the student claiming to be
transgender to meet with counselors who were trained and
licensed to address these issues and the counselors often
consulted with additional counselors, principals, and school
administrators.29 Once a transgender student was approved to
use the bathroom or locker room that aligned with his or her
gender identity, the student was required to use only those
24
App. 395.
25
App. 396.
26
App. 397.
27
App. 625.
28
App. 604.
29
App. 638, 923–25.
12
facilities. The student could no longer use the facilities
corresponding to that student’s sex at birth.30
BASH has several multi-user bathrooms. 31 Each has
individual toilet stalls.32 Additionally, BASH has between four
and eight single-user restrooms that are available to all
students, depending on the time of day. 33 Four of these
restrooms are always available for student use.34
The locker rooms at BASH consist of common areas,
private “team rooms,” and shower facilities. 35 Over the past
(approximately) two years, BASH has renovated its locker
rooms. The “gang showers” were replaced with single-user
showers which have privacy curtains.36 BASH does not require
a student to change in the locker room prior to gym class,
although the student must change into gym clothes.37 A student
who is uncomfortable changing in the locker room can change
privately in one of the single-user facilities, the private shower
stalls, or team rooms.38
30
App. 931–32.
31
App. 612.
32
App. 612–13.
33
App. 613.
34
App. 616.
35
App. 617–19.
36
App. 619–20.
37
App. 618–19
38
App. 618–19.
13
B. The Litigation.
Four plaintiffs—proceeding pseudonymously under the
names Joel Doe, Jack Jones, Mary Smith, and Macy Roe—
sued the District after it changed its bathroom and locker room
policy to the policy we have described above.39 Their claims
were based on encounters between some of the plaintiffs and
transgender students in locker rooms or multi-user bathrooms.
The plaintiffs sought to enjoin BASH’s policy of permitting
transgender students to use the bathrooms and locker rooms
that aligned with their gender identities. They sought a
preliminary injunction on three grounds. First, the plaintiffs
alleged that the School District’s policy violated their
constitutional right to bodily privacy. Next, they claimed that
the School District’s policy violated Title IX of the Education
Amendments of 1972 (Title IX).40 Finally, they alleged that the
policy was contrary to Pennsylvania tort law. After discovery
and evidentiary hearings, the District Court filed the extensive
and well-reasoned opinion we have already referred to, in
which it explained that the plaintiffs had not demonstrated that
they were likely to succeed on the merits of any of their claims
and that plaintiffs had not shown that they would be irreparably
harmed absent an injunction.
39
The plaintiffs included parents and guardians of some of
the anonymous students. The District Court provided a
detailed recitation of the factual background of this suit,
including the particular conduct each plaintiff alleges as the
basis for the alleged violation of a privacy interest. See Doe v.
Boyertown Area Sch. Dist., 276 F. Supp. 3d 324, 335–64
(E.D. Pa. 2017).
40
86 Stat. 373, as amended 20 U.S.C. § 1681 et. seq.
14
For reasons the court identified, it concluded that even
if the School District’s policy implicated the plaintiffs’
constitutional right to privacy, the state had a compelling
interest in not discriminating against transgender students. The
court also determined that the School District’s policy was
narrowly tailored to serve that interest. Accordingly, the
District Court ruled that even if a cisgender plaintiff had been
viewed by a transgender student, it would not have violated the
cisgender student’s constitutional right to privacy. We agree.
The District Court rejected the plaintiffs’ Title IX claim
for two reasons. First, it found that the School District’s policy
did not discriminate on the basis of sex, because it applied
equally to all students—cisgender male and cisgender female,
as well as transgender male and transgender female students—
alike. The court also concluded that the plaintiffs had not
identified any conduct that was sufficiently serious to
constitute Title IX harassment. The mere presence of a
transgender student in a locker room should not be objectively
offensive to a reasonable person given the safeguards of the
school’s policy.
For essentially the reasons described above, the District
Court also declined to issue an injunction based on the
Pennsylvania tort of intrusion upon seclusion. It found that
there was insufficient evidence in the record to demonstrate
that a transgender student ever viewed a partially clothed
plaintiff, and that the presence of a transgender student would
not be highly offensive to a reasonable person.
The District Court rejected the plaintiffs’ theory of
irreparable harm that posited that the plaintiffs were being
forced to give up a constitutional right to use segregated locker
15
rooms and bathrooms. It noted that the School District
permitted the students to use the locker room facilities “without
limitation.”41 Any student who was uncomfortable being in a
state of undress or going to the bathroom with transgender
students could use the single-user bathrooms or team rooms
that BASH has made available.
Having found that the plaintiffs had no likelihood of
success on the merits and did not face irreparable harm, the
District Court entered an order on August 25, 2017 denying the
injunction. This appeal followed.42
41
Doe v. Boyertown Area Sch. Dist., 276 F. Supp. 3d at 410.
42
Numerous amici filed briefs on behalf of the appellees, and
one group filed a brief on behalf of the appellants. At the
conclusion of briefing we heard argument. Recognizing the
time-sensitive nature of this appeal and the concerns of all of
the parents and students in the School District, as well as the
District itself, we adjourned to conference to determine if a
ruling could be made from the bench. After conferencing, the
panel voted to unanimously affirm the ruling of the District
Court. We announced that decision and entered an
accompanying order. We now supplement that order with this
opinion.
16
II. DISCUSSION43
Preliminary injunctive relief is an “extraordinary
remedy.” 44 It may be granted only when the moving party
shows “(1) a likelihood of success on the merits; (2) that [the
movant] will suffer irreparable harm if the injunction is denied;
(3) that granting preliminary relief will not result in even
greater harm to the nonmoving party; and (4) that the public
interest favors such relief.” 45 The movants must establish
entitlement to relief by clear evidence.46 We review the denial
of a preliminary injunction for “an abuse of discretion, an error
of law, or a clear mistake in the consideration of proof.”47 We
exercise plenary review of the lower court’s conclusions of law
but review its findings of fact for clear error.48
A. Likelihood of Success on the Merits
The District Court correctly concluded that the
appellants were not entitled to an injunction because none of
their claims are likely to succeed on the merits.
1. The District Court
correctly concluded that
43
The District Court had jurisdiction pursuant to 28 U.S.C. §§
1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. §
1292(a)(1).
44
Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d
Cir. 2004).
45
Id.46
Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008).
47
Kos Pharm., 369 F.3d at 708 (citation omitted).
48
Id. (citations omitted).
17
the appellants’
constitutional right to
privacy claim was
unlikely to succeed on
the merits.
The appellants contend that the District Court
erroneously concluded they were unlikely to succeed on their
claim that the School District’s policy violated their
constitutional right to privacy. They assert that the District
Court (1) failed to recognize the “contours” of the right to
privacy; (2) failed to recognize that a policy opening up
facilities to persons of the opposite sex necessarily violates that
right; (3) erroneously concluded that the School District’s
policy advanced a compelling interest; and (4) incorrectly
found that the policy was narrowly tailored to serve that
interest. We reject each of these arguments in turn.
The appellants’ challenge to the School District’s policy
was brought as a civil rights claim pursuant to 42 U.S.C. §
1983. Section 1983 claims can succeed only if the underlying
act—here, the alleged exposure of the appellants’ partially
clothed bodies to transgender students whose birth-determined
sex differed from the appellants—violated a constitutional
right. 49 When a plaintiff’s § 1983 claim is premised on a
violation of the constitutional right to privacy, it will succeed
49
Doe v. SEPTA, 72 F.3d 1133, 1137 (3d Cir. 1995) (“A §
1983 action cannot be maintained unless the underlying act
violates a plaintiff’s [c]onstitutional rights.”).
18
only if it is “limited to those rights of privacy which are
fundamental or implicit in the concept of ordered liberty.”50
The touchstone of constitutional privacy protection is
whether the information at issue is “within an individual’s
reasonable expectations of confidentiality.” 51 The Supreme
Court has acknowledged two types of constitutional privacy
interests rooted in the Fourteenth Amendment—“the
individual interest in avoiding disclosure of personal matters”
and the “interest in independence in making certain kinds of
important decisions.” 52 Based on the first principal described
above, we have held that a person has a constitutionally
protected privacy interest in his or her partially clothed body.53
50
Id. (quoting Paul v. Davis, 424 U.S. 693, 713 (1976)
(alterations and internal quotation marks omitted)).
51
Doe v. Luzerne County, 660 F.3d 169, 175 (3d Cir. 2011)
(quoting Malleus v. George, 641 F.3d 560, 564 (3d Cir.
2011)).
52
Id. (citations omitted).
53
Id. at 177. Other Circuits have come to the same
conclusion. Brannum v. Overton Cty. School Bd., 516 F.3d
489, 494, 498 (6th Cir. 2008) (finding a violation of the
Fourth Amendment right to privacy when a school surveilled
partially clothed middle school students in their locker room,
and further noting that this is the “same privacy right . . .
located in the Due Process clause”); Poe v. Leonard, 282 F.3d
123, 136 (2d Cir. 2002) (“[T]here is a right to privacy in
one’s unclothed or partially clothed body.”); York v. Story,
324 F.2d 450, 455 (9th Cir. 1963) (“We cannot conceive of a
more basic subject of privacy than the naked body. The desire
to shield one’s unclothed [figure] from view of strangers, and
particularly strangers of the opposite sex, is impelled by
19
The appellants advance two main arguments in support
of their contention that their right to privacy was violated by
the School District’s policy of permitting transgender students
to use bathrooms and locker rooms that aligned with their
gender identities. Neither is persuasive.
First, the appellants claim that their right to privacy was
violated because the policy permitted them to be viewed by
members of the opposite sex while partially clothed. 54
Regardless of the degree of the appellants’ undress at the time
of the encounters, the District Court correctly found that this
would not give rise to a constitutional violation because the
School District’s policy served a compelling interest—
preventing discrimination against transgender students—and
was narrowly tailored to that interest.
elementary self-respect and personal dignity.”). The District
Court noted that Doe v. Luzerne County did not explicitly
hold there was a constitutional right to privacy in an
individual’s unclothed or partially clothed body. However, by
concluding that Doe had a reasonable expectation of privacy
and remanding the case to determine the exact contours of
that right, we implicitly recognized that such a privacy right
exists. The District Court assumed the existence of the right,
and the parties seemingly agreed that the right exists. If there
were any doubt after Doe v. Luzerne County that the
constitution recognizes a right to privacy in a person’s
unclothed or partially clothed body, we hold today that such a
right exists.
54
See Br. for Appellants, 18 (“The privacy interest is vitiated
when a member of one sex is viewed by a member of the
opposite sex.” (citation omitted)).
20
The constitutional right to privacy is not absolute.55 It
must be weighed against important competing governmental
interests. 56 Only unjustified invasions of privacy by the
government are actionable in a § 1983 claim. 57 That is, the
constitution forbids governmental infringement on certain
fundamental interests unless that infringement is sufficiently
tailored to serve a compelling state interest. 58 The District
55
Doe v. SEPTA, 72 F.3d at 1138.
56
Doe v. Luzerne County, 660 F.3d at 178; Sterling v.
Borough of Minersville, 232 F.3d 190, 195 (3d Cir. 2000)
(“In examining right to privacy claims, we, therefore, balance
a possible and responsible government interest in disclosure
against the individual’s policy interest.”).
57
See Doe v. SEPTA, 72 F.3d at 1138 (citing Whalen v. Roe,
429 U.S. 589, 602 (1977)); see also Olmstead v. United
States, 277 U.S. 438, 478–79 (1928) (Brandies, J.,
dissenting) (“every unjustifiable intrusion upon the privacy of
an individual . . . must be deemed a [constitutional] violation”
(emphasis added)).
58
Reno v. Flores, 507 U.S. 292, 301–02 (1993). The District
Court found that this “compelling interest” analysis was the
appropriate level to review BASH’s policy. Doe v. Boyertown
Area Sch. Dist., 276 F. Supp. 3d at 390 (citing Reno, 507 U.S.
at 302). The parties do not explicitly challenge this choice.
Br. for Appellants, 27-33; Br. for Appellees, 30; Br. for
Intervenor-Appellee, 36. In other privacy-rights contexts, we
have found that an “intermediate standard of review” was
appropriate, and that the “more stringent ‘compelling interest
analysis’ would be used when the intrusion on an individual’s
privacy was severe.” Doe v. SEPTA, 72 F.3d at 1139–40.
Because we hold that BASH’s policy survives the more
21
Court found that the School District’s policy served “a
compelling state interest in not discriminating against
transgender students” and was narrowly tailored to that
interest.59 We agree.
As set forth in detail above, transgender students face
extraordinary social, psychological, and medical risks and the
School District clearly had a compelling state interest in
shielding them from discrimination. There can be “no denying
that transgender individuals face discrimination, harassment,
and violence because of their gender identity.”60 The risk of
experiencing substantial clinical distress as a result of gender
dysphoria is particularly high among children and may
intensify during puberty. 61 The Supreme Court has regularly
held that the state has a compelling interest in protecting the
physical and psychological well-being of minors.62 We have
stringent standard of review, we need not decide which
standard of review is appropriate here.
59
Doe v. Boyertown Area Sch. Dist., 276 F. Supp. 3d at 390.
60
Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1
Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017).
61
App. 2276–78.
62
See Sable Commc’ns of Cal., Inc. v. F.C.C., 492 U.S. 115,
125 (1989) (“We have recognized that there is
a compelling interest in protecting the physical and
psychological well-being of minors. This interest extends to
shielding minors from the influence of literature that is not
obscene by adult standards.”); Ginsberg v. New York, 390
U.S. 629, 640 (1968) (a state “has an independent interest in
the well-being of its youth”); New York v. Ferber, 458 U.S.
747, 756–57 (1982) (“It is evident beyond the need for
elaboration that a State's interest in ‘safeguarding the physical
22
similarly found that the government has a compelling interest
in protecting and caring for children in various contexts. 63
Mistreatment of transgender students can exacerbate gender
dysphoria, lead to negative educational outcomes, and
precipitate self-injurious behavior. When transgender students
face discrimination in schools, the risk to their wellbeing
cannot be overstated—indeed, it can be life threatening. This
record clearly supports the District Court’s conclusion that the
School District had a compelling state interest in protecting
transgender students from discrimination.
Moreover, the School District’s policy fosters an
environment of inclusivity, acceptance, and tolerance. As the
appellees’ amicus brief from the National Education
Association convincingly explains, these values serve an
important educational function for both transgender and
cisgender students. 64 When a school promotes diversity and
inclusion, “classroom discussion is livelier, more spirited, and
simply more enlightening and interesting [because] the
students have the greatest possible variety of backgrounds.”65
Students in diverse learning environments have higher
academic achievement leading to better outcomes for all
and psychological well-being of a minor’ is ‘compelling.’”
(quoting Globe Newspaper Co. v. Superior Court, 457 U.S.
596, 607 (1982))).
63
See, e.g., Croft v. Westmoreland Cty. Children & Youth
Servs., 103 F.3d 1123, 1125 (3d Cir. 1997) (noting that the
government has a compelling interest in the “protection of
children,” and in protecting children from abuse).
64
Br. for Amicus Curiae National Education Association, 7–
11.
65
Grutter v. Bollinger, 539 U.S. 306, 330 (2003).
23
students. 66 Public education “must prepare pupils for
citizenship in the Republic,”67 and inclusive classrooms reduce
prejudices and promote diverse relationships which later
benefit students in the workplace and in their communities.68
Accordingly, the School District’s policy not only serves the
compelling interest of protecting transgender students, but it
benefits all students by promoting acceptance.
As we have already noted, we do not intend to minimize
or ignore testimony suggesting that some of the appellants now
avoid using the restrooms and reduce their water intake in order
to reduce the number of times they need to use restrooms under
the new policy. Nor do we discount the surprise the appellants
reported feeling when in an intimate space with a student they
66
Br. for Amicus Curiae National Education Association, 9–
10 (citing Stephen Brand et al., Middle School Improvement
and Reform: Development and Validation of a School- Level
Assessment of Climate, Cultural Pluralism and School Safety,
95 J. Educ. Psychol. 570, 571 (2003); John Rosales, Positive
School Cultures Thrive When Support Staff Included, NEA
Today (Jan. 10, 2017); N. Eugene Walls et al. Gay-Straight
Alliances and School Experiences of Sexual Minority Youth,
41 Youth & Soc’y 307, 323-25 (2010); Stephen T. Russell,
Are School Policies Focused on Sexual Orientation and
Gender Identity Associated with Less Bullying? Teachers’
Perspectives, 54 J. Sch. Psychol. 29 (2016)).
67
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681
(1986) (citation omitted).
68
Br. for Amicus Curiae National Education Association, 10
(citing Jeanne L. Reid & Sharon Lynn Kagan, A Better Start:
Why Classroom Diversity Matters in Early Education 9 (Apr.
2015)).
24
understood was of the opposite biological sex. 69 We cannot,
however, equate the situation the appellants now face with the
very drastic consequences that the transgender students must
endure if the school were to ignore the latter’s needs and
concerns. Moreover, as we have mentioned, those cisgender
students who feel that they must try to limit trips to the
restroom to avoid contact with transgender students can use the
single-user bathrooms in the school.
Assuming the policy is subject to strict scrutiny, it must
advance a compelling state interest and the means of achieving
that interest must be “specifically and narrowly framed to
accomplish that purpose.” 70 Having correctly identified a
compelling state interest, the District Court correctly held that
the School District’s policy was narrowly tailored. The
appellants contend that “a much more tailored solution is to
provide single-user accommodations.”71 They reason that “all
students would be allowed to access the individual facilities,
69
App. 276, 1943. To the extent that the appellants’ claim for
relief arises from the embarrassment and surprise they felt
after seeing a transgender student in a particular space, they
are actually complaining about the implementation of the
policy and the lack of pre-implementation communication.
That is an administrative issue, not a constitutional one. To
the extent that the appellants are expressing discomfort being
around students whom they define as different from
themselves, that discomfort does not implicate a privacy
interest, even when viewed through the lens of strict scrutiny.
70
Grutter, 539 U.S. at 333 (quoting Shaw v. Hunt, 517 U.S.
899, 908 (1996)).
71
Br. for Appellants, 32.
25
[so] no stigma would attach to the professed transgender
students’ using them, and preserving the sex-specific
communal facilities to single-sex use would resolve all privacy
concerns.”72
This argument is not only unpersuasive, it fails to
comprehend the depths of the problems the School District’s
policy was trying to remedy or the steps taken to address them.
The School District already provides single-user
accommodations for all students. Any student who is
uncomfortable changing around their peers in private spaces,
whether transgender or cisgender, may change in a bathroom
stall, single-user bathroom, or the private team rooms.73 The
appellants seemingly admit that these accommodations
“resolve all privacy concerns.”74 Yet they insist that the policy
should be changed to require that transgender students use
individual bathrooms if they do not wish to use the communal
facilities that align with their birth-determined sex. Not only
would forcing transgender students to use single-user facilities
or those that correspond to their birth sex not serve the
compelling interest that the School District has identified here,
it would significantly undermine it.75 As the Court of Appeals
for the Seventh Circuit has recognized, a school district’s
policy that required a transgender student to use single-user
72
Id.73
App. 618–19.
74
Br. for Appellants, 32.
75
See Br. for Amici Curiae American Academy of Pediatrics
et al., 17–18. (“[F]orcing transgender students to use separate
facilities sends a stigmatizing message that can have a lasting
and damaging impact on the health and well-being of the
young person.”).
26
facilities “actually invited more scrutiny and attention from his
peers.” 76 Adopting the appellants’ position would very
publicly brand all transgender students with a scarlet “T,” and
they should not have to endure that as the price of attending
their public school.
Nothing in the record suggests that cisgender students
who voluntarily elect to use single-user facilities to avoid
transgender students face the same extraordinary consequences
as transgender students would if they were forced to use them.
As we explain more fully below, requiring transgender
students to use single user or birth-sex-aligned facilities is its
own form of discrimination.
It is therefore clear that the District Court was correct in
concluding that the appellants are unlikely to succeed in
establishing a violation of their right to privacy based on a
transgender student potentially viewing them in a state of
undress in a locker room or restroom. The challenged policy is
narrowly tailored to serve a compelling governmental interest.
There is no constitutional violation.
The appellants also urge us to recognize constitutional
privacy protections for alleged violations that resulted from
conduct other than being viewed by transgender students in a
locker room or bathroom. They assert that “government actors
cannot force minors to endure the risk of unconsented intimate
exposure to the opposite sex as a condition for using the very
facilities set aside to protect their privacy.”77 They claim that
their constitutional privacy rights were violated “when the
76
Whitaker, 858 F.3d at 1045.
77
Br. for Appellants, 18 (emphasis added).
27
sexes intermingle[d]” in the bathrooms and locker rooms. 78
They also argue that the female appellants’ privacy rights are
violated if they are forced to attend to their menstrual hygiene
in a facility where members of the opposite sex may potentially
be present. 79 In other words, they contend that their
constitutional right to privacy is necessarily violated because
they are forced to share bathrooms and locker rooms with
transgender students whose gender identities correspond with
the sex-segregated space, but do not do not align with their
birth sex.
We reject the premise of this argument because BASH’s
policy does not force any cisgender student to disrobe in the
presence of any student—cisgender or transgender. BASH has
provided facilities for any student who does not feel
comfortable being in the confines of a communal restroom or
locker room. BASH has installed privacy stalls and set some
bathrooms aside as single-user facilities so that any student
who is uneasy undressing or using a restroom in the presence
of others can take steps to avoid contact. BASH’s policy does
not compel a privacy violation for any student.
In 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 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
78
Id. at 27.
79
Id. at 26. We note that the appellants do not allege that the
female plaintiffs ever actually tended to their periods in the
presence of a transgender female student.
28
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. As the Supreme Court has stated, “[p]ublic school
locker rooms . . . are not notable for the privacy they afford.”80
Thus, we are unpersuaded to the extent that the
appellants’ asserted privacy interest requires protection from
the risk of encountering students in a bathroom or locker room
whom appellants identify as being members of the opposite
sex. As the Seventh Circuit noted in Whitaker “[a] transgender
student’s presence in the restroom provides no more of a risk
to other students’ privacy rights than the presence of an overly
curious student of the same biological sex who decides to
sneak glances at his or her classmates performing their bodily
functions.”81
None of the cases cited by the appellants is to the
contrary. 82 For example, in their brief and at argument, they
placed substantial reliance on Faulkner v. Jones 83 for the
proposition that “society [has] undisputed[ly] approv[ed]
separate public restrooms for men and women based on
privacy concerns. The need for privacy justifies separation . . .
.”84 But that case did not recognize a constitutional mandate
80
Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657 (1995).
81
Whitaker, 858 F.3d at 1052.
82
Br. for Appellee, 15–31.
83
10 F.3d 226 (4th Cir. 1993).
84
Br. for Appellants, 17 (alterations added) (quoting
Faulkner, 10 F.3d at 232).
29
that bathrooms and locker rooms must be segregated by birth-
determined sex. Although it acknowledged that privacy
concerns may justify separate facilities for men and women in
certain circumstances, 85 it did not hold that the Constitution
compels separate bathroom facilities. Moreover, as we have
explained and as the District Court more thoroughly described,
BASH has carefully crafted a policy that attempts to address
the concerns that some cisgender students may have. To its
credit, it has done so in a way that recognizes those concerns
as well as the needs, humanity, and decency of transgender
students.
The appellants’ reliance on Chaney v. Plainfield
Healthcare Center86 is similarly unconvincing. That was an
appeal from a Title VII suit brought against a nursing home
after a Black nursing assistant was fired for protesting a
patient’s demand that he receive care only from White nursing
aids.87 The court distinguished medical care based on race from
medical care based on sex, noting that just as “the law tolerates
same-sex restrooms or same-sex dressing rooms . . . to
accommodate privacy needs, Title VII allows an employer to
respect a preference for same-sex health providers, but not
same-race providers.”88 Like Faulkner, Chaney held that the
85
Faulkner, 10 F.3d at 232 (“In the end, distinctions in any
separate facilities provided for males and females may be
based on real differences between the sexes, both in quality
and quantity, so long as the distinctions are not based on
stereotyped or generalized perceptions of differences.”).
86
612 F.3d 908, 913 (7th Cir. 2010).
87
Chaney, 612 F.3d at 910–12.
88
Id. at 913.
30
Constitution tolerates single-sex accommodations. It did not
hold that the constitution demands it.
Equally unpersuasive is the appellants’ reliance on
cases discussing far more intrusive invasions of privacy than
allowed by BASH’s policy. Cases about strip searches89 and a
criminal conviction for voyeurism after a person repeatedly
looked at women in the stalls of public restrooms90 are wholly
unhelpful to our analysis. Those cases involve inappropriate
conduct as well as conduct that intruded into far more “intimate
aspects of human affairs” than here.91 There is simply nothing
inappropriate about transgender students using the restrooms
or locker rooms that correspond to their gender identity under
the policy BASH has initiated, and we reject appellants’
attempt to argue that there is. Appellants do not contend that
transgender Students A or B did anything remotely out of the
ordinary while using BASH’s facilities. Indeed, the appellants’
privacy complaint is not with transgender students’ conduct,
but with their mere presence. We have already explained that
the presence of transgender students in these spaces does not
offend the constitutional right of privacy any more than the
presence of cisgender students in those spaces.
In an argument that completely misses (or deliberately
ignores) the reason for the disputed policy or the circumstances
it addresses, the appellants insist that it is improper to consider
a student’s transgender status when conducting this privacy
89
Canedy v. Boardman, 16 F.3d 183, 185–86, 188 (7th Cir.
1994).
90
State v. Lawson, 340 P.3d 979 (Wash. App. 2014).
91
Doe v. Luzerne County, 660 F.3d at 176 (quoting Nunez v.
Pachman, 578 F.3d 228, 232 (3d Cir. 2009)).
31
analysis and that we must only look at the student’s anatomy.92
We disagree. Constitutional right to privacy cases “necessarily
require fact-intensive and context-specific analyses.”93 Bright
line rules cannot be drawn.94 Put simply—the facts of a given
case are critically important when assessing whether a
constitutional right to privacy has been violated. A case
involving transgender students using facilities aligned with
their gender identities after seeking and receiving approval
from trained school counselors and administrators implicates
different privacy concerns than, for example, a case involving
an adult stranger sneaking into a locker room to watch a
fourteen year-old girl shower. The latter scenario—taken from
a case the appellants rely upon95— is simply not analogous to
the circumstances here.
2. The District Court
correctly concluded that
the appellants’ Title IX
claim was unlikely to
succeed on the merits.
The District Court rejected the appellants’ Title IX
claim because the School District’s policy treated all students
equally and therefore did not discriminate on the basis of sex,
and because the appellants had failed to meet the elements of a
“hostile environment harassment” claim. We again agree. We
also agree with the School District’s position that barring
92
Br. for Appellants, 10–12.
93
Doe v. Luzerne County, 660 F.3d at 176.
94
Id.95
People v. Grunau, No. H015871, 2009 WL 5149857 (Cal.
Ct. App. Dec. 29, 2009) (unpublished memorandum opinion).
32
transgender students from restrooms that align with their
gender identity would itself pose a potential Title IX violation.
Title IX prohibits discrimination based on sex in all
educational programs that receive funds from the federal
government.96 However, discrimination with regard to privacy
facilities is exempt from that blanket prohibition. An institution
“may provide separate toilet, locker room, and shower
facilities on the basis of sex, but such facilities provided for
students of one sex shall be comparable to such facilities
provided for students of the other sex.” 97 This exception is
permissive—Title IX does not require that an institution
provide separate privacy facilities for the sexes.
Title IX also supports a cause of action for “hostile
environment harassment.” 98 To recover on such a claim, a
plaintiff must establish sexual harassment that is so severe,
pervasive, or objectively offensive and that “so undermines
and detracts from the victims’ educational experience that [he
or she] is effectively denied equal access to an institution’s
resources and opportunities.”99 To support a claim of hostile
96
20 U.S.C. § 1681(a).
97
34 C.F.R. § 106.33.
98
DeJohn v. Temple Univ., 537 F.3d 301, 316 n.14 (3d Cir.
2008) (citation omitted).
99
Id. (alterations in original) (citation omitted). We recently
noted that we have not always been consistent in stating
whether a plaintiff claiming sexual harassment must prove the
harassment was “severe or pervasive” or “severe and
pervasive.” Castleberry v. STI Grp., 863 F.3d 259, 263–64
(3d Cir. 2017) (emphasis added). Much of the confusion
stems from the fact that the Supreme Court has used both the
33
environment harassment, a plaintiff must demonstrate that the
offensive conduct occurred because of his or her sex.100
Title IX’s “hostile environment harassment” cause of
action originated in a series of cases decided under Title VII of
the Civil Rights Act of 1964 (“Title VII”). 101 The Supreme
Court has “extended an analogous cause of action to students
under Title IX.”102 Title VII cases are therefore instructive.103
conjunctive and the disjunctive to describe the plaintiff’s
burden. Compare Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57, 67 (1986) (“For sexual harassment to be actionable, it
must be sufficiently severe or pervasive . . . .”), with Davis
Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526
U.S. 629, 633 (1999) (concluding that an action for Title IX
harassment “will lie only for harassment that is so severe,
pervasive and objectively offensive that it effectively bars the
victim’s access to an educational opportunity or benefit”). In
Castleberry, we concluded that the “correct standard is severe
or pervasive. Castleberry, 863 F.3d at 264. Accordingly, we
will proceed using the disjunctive inquiry here.
100
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
81 (1998) (holding, in the Title VII context, that a plaintiff
“must always prove that the conduct at issue . . . constituted
discrimination because of . . . sex.” (internal quotations
omitted)).
101
42 U.S.C. § 2000e et seq.
102
Saxe v. State College Area Sch. Dist., 240 F.3d 200, 205
(3d Cir. 2001).
103
Id. Courts have frequently looked to Title VII authority for
guidance with Title IX cases. See, e.g., Olmstead v. L.C. ex
rel. Zimring, 527 U.S. 581, 616 n.1 (1999) (“This Court has
34
Title VII prohibits employers from discriminating based
on sex.104 In Oncale, the Supreme Court considered whether
Title VII prohibited “discrimination because of sex” when the
harasser and the harassed employee were the same sex.105 In
concluding that Title VII could support such a claim, the Court
held that Title VII is concerned only with “discrimination
because of sex.”106 It noted that the Court had never held that
“workplace harassment, even harassment between men and
women, is automatically discrimination because of sex merely
because the words used have sexual content or
connotations.” 107 Rather, “the critical issue . . . is whether
members of one sex are exposed to disadvantageous terms or
conditions of employment to which members of the other sex
are not exposed.”108 The plaintiffs in a Title VII action must
therefore always “prove that the conduct at issue was not
merely tinged with offensive sexual connotations, but actually
constituted discrimination because of sex.” 109 The same
requirement holds true for Title IX claims.
The appellants have not provided any authority—either
in the District Court or on appeal—to suggest that a sex-neutral
also looked to its Title VII interpretations of discrimination in
illuminating Title IX.” (collecting cases)).
104
42 U.S.C. § 2000e-2.
105
Oncale, 523 U.S. at 76.
106
Id. at 80.
107
Id.108
Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25
(1993) (Ginsburg, J., concurring)).
109
Id. at 81 (internal alterations, emphasis, and quotation
marks omitted).
35
policy can give rise to a Title IX claim. Instead, they simply
hypothesize that “harassment” that targets both sexes equally
would violate Title IX; that is simply not the law. 110 The
touchstone of both Title VII and Title IX claims is disparate
treatment based on sex.111 The School District’s policy allows
all students to use bathrooms and locker rooms that align with
their gender identity. It does not discriminate based on sex, and
therefore does not offend Title IX.
The District Court also correctly found that the
appellants had not met their burden of establishing that the
mere presence of transgender students in bathrooms and locker
rooms constitutes sexual harassment so severe, pervasive, or
objectively offensive and “that so undermines and detracts
from the victims’ educational experience that [the plaintiff] is
effectively denied equal access to an institution’s resources and
opportunities.” 112 That is particularly true given the many
110
See Pasqual v. Metro. Life Ins. Co., 101 F.3d 514, 517 (7th
Cir. 1996) (“Harassment that is inflicted without regard to
gender, that is, where males and females in the same setting
do not receive disparate treatment, is not actionable because
the harassment is not based on sex.”); Henson v. City of
Dundee, 682 F.2d 897, 904 (11th Cir. 1982) (“[T]here may be
cases in which a supervisor makes sexual overtures of both
sexes or where the conduct complained of is equally offensive
to male and female workers. In such cases, [the] harassment
would not be based on sex because men and women are
accorded like treatment . . . and the plaintiff would have no
remedy under Title VII.”).
111
Oncale, 523 U.S. at 80.
112
DeJohn, 537 F.3d at 316 n.14 (citations omitted).
36
safeguards the School District put in place as part of the
challenged policy.
Rather than relying on relevant legal authority to
establish that the mere presence of a transgender student in a
locker room or bathroom rises to the level of harassment, the
appellants again cite inapposite cases that involve egregious
harassment. That is not surprising since we have found no
authority that supports the appellants’ claims. Two cases that
the appellants attempt to analogize to their situation are
particularly illustrative of the weakness of their position—
Lewis v. Triborough Bridge and Tunnel Authority 113 and
Schonauer v. DCR Entertainment Inc. 114 Lewis involved
harassment that is worlds apart from anything in the present
record. There, cisgender men not only entered a locker room
while cisgender female employees were changing, they
“leer[ed]” at them, “crowd[ed] the entrance to the locker room,
forcing [them] to ‘run the gauntlet[,]’ and brush[ed] up against
them.”115 When a supervisor was informed, he referred to the
female employees as “cunts” and “the biggest bunch of fucking
crybabies.” 116 Any comparison to the circumstances the
appellants face here is patently frivolous.
Schonauer is also distinguishable. There, the plaintiff
was employed as a beverage server at a topless nightclub and
alleged that she had been harassed by a manager.117 In addition
to entering the women’s changing facility, the manager
113
77 F. Supp. 2d 376, 377–78 (S.D.N.Y. 1999).
114
905 P.2d 392, 396–97, 400–01 (Wash. Ct. App. 1995).
115
77 F. Supp. 2d at 377.
116
Id. at 378.
117
Schonauer, 905 P.2d at 396.
37
repeatedly encouraged the plaintiff to enter nude dance
contests, asked questions about her sexual fantasies, and
probed her sexual history.118 When the plaintiff resisted these
advances, she was fired.119 The Washington Court of Appeals
found that this behavior could constitute harassment not simply
because the manager entered the changing facility, but because
he pressed the plaintiff to “provide sexually explicit
information and to dance on stage in a sexually provocative
way.”120
The District Court no doubt realized that the appellants’
attempt to seize upon Lewis and Schonauer demonstrated the
weakness of their arguments. Here, there are no allegations of
harassment, let alone any that are even remotely as “severe,
pervasive, [or] objectively offensive.”121 Still, the appellants
unconvincingly try to equate mere presence in a space with
harassing activity.
This case is far more analogous to Cruzan v. Special
School Dist., No. 1, 122 a Title VII case from the Court of
Appeals for the Eighth Circuit. Cruzan held that a transgender
individual in a bathroom did not create a hostile environment
because there was no evidence that the individual “engaged in
any inappropriate conduct other than merely being present in
the women’s faculty restroom.” 123 That is, a transgender
118
Id. at 396–97.
119
Id. at 397.
120
Id. at 400.
121
DeJohn, 537 F.3d at 316 n.14; Castleberry, 863 F.3d at
264.
122
294 F.3d 981, 984 (8th Cir. 2002).
123
Id.38
person in a restroom did not create an environment that was
“permeated with discriminatory intimidation, ridicule, and
insult” as required to sustain a harassment claim under Title
VII.124 We agree with the Eight Circuit’s conclusion. As we
have emphasized, the appellants’ real objection is to the
presence of transgender students, not to any “environment”
their presence creates. Indeed, the allegations here include an
assertion 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. That is not the type of
conduct that supports a Title IX hostile environment claim.125
The District Court recognized this and correctly ruled that this
claim was unlikely to succeed.
The School District, on the other hand, contends that
barring transgender students from using privacy facilities that
align with their gender identity would, itself, constitute
discrimination under a sex-stereotyping theory in violation of
Title IX.126 We need not decide that very different issue here.
We note only that in 2017, the Seventh Circuit held that a
school district’s policy of prohibiting transgender students
from using bathrooms and locker rooms consistent with their
gender identity violated Title IX because it discriminated
against transgender students by subjecting them to “different
rules, sanctions, and treatment than non-transgender
124
Id. (citation omitted).
125
This is not to say that the transgender students could not
engage in conduct that would rise to the level of harassment.
It would be the same conduct required for cisgender students
to harass someone.
126
Br. for Appellees, 38–40.
39
students.”127 The injunction that the plaintiffs have requested
here would essentially replicate the policy used by the school
district in Whitaker by Whitaker v. Kenosha Unified School
District. Hence, BASH can hardly be faulted for being
proactive in adopting a policy that avoids the issues that may
otherwise have occurred under Title IX.
We therefore hold that the District Court correctly
declined to issue an injunction based on the appellants’ Title
IX claim.
3. The District Court
correctly concluded that
the appellants’ state law
tort claim was unlikely
to succeed on the merits.
Finally, the appellants contend that the District Court
erred in denying the injunction as to their Pennsylvania-law
tort claim for intrusion upon seclusion. Pennsylvania has
adopted the Second Restatement of Torts’ definition of
intrusion upon seclusion:
One who intentionally intrudes,
physically or otherwise, upon the
solitude or seclusion of another or
his private affairs or concerns, is
subject to the other for invasion of
his privacy, if the intrusion would
127
Whitaker, 858 F.3d at 1050.
40
be highly offensive to a reasonable
person.128
In denying this claim, the District Court concluded that the
mere presence of a transgender individual in a bathroom or
locker room is not the type of conduct that would be highly
offensive to a reasonable person. As we have noted, students
in a locker room expect to see other students in varying stages
of undress, and they expect that other students will see them in
varying stages of undress. We will affirm the District Court’s
rejection of the appellants’ tort claim.
B. Irreparable Harm
In addition to finding that the appellants were unlikely
to succeed on the merits of their claims, the District Court
denied injunctive relief because they had not demonstrated that
the failure to issue an injunction would result in irreparable
harm. The District Court found that:
On a practical level . . . the privacy
protections that are in place at
BASH, which include the
bathroom stalls and shower stalls
in the locker rooms, the bathroom
stalls in the multi-user bathrooms,
the availability of a number of
single-user bathrooms (a few of
which will have lockers for storing
items), the [ability] of students to
128
Tagouma v. Investigative Consultant Servs, Inc., 4 A.3d
170, 174 (Pa. Super. Ct. 2010) (quoting Restatement (Second)
of Torts § 652B (1965)).
41
store personal items in their locker
or leave those items with the gym
teacher, and the availability of the
team rooms in the locker rooms
(which would not involve students
passing through the common area
of the locker room), and the overall
willingness of the [appellees] to
work with the students and their
families to assure that the students
are comfortable at BASH,
mitigates against a finding of
irreparable harm. . . . The privacy
protections available to students in
2017-18 are more than suitable to
address any privacy concerns
relating to the presence of
transgender students in the locker
rooms and bathrooms at BASH.129
We agree that the appellants did not demonstrate
irreparable harm would result from denying an injunction. The
School District has provided adequate privacy facilities for the
appellants to use during this litigation. Even if the appellants
could otherwise succeed on one or more of their claims (and,
as explained above, we do not suggest that they can), the
single-user facilities ensure that no appellant faces irreparable
harm in the meantime.
129
Doe v. Boyertown Area Sch. Dist., 276 F. Supp 3d at 410.
42
III. CONCLUSION
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 the
reasons set forth above and in the well-reasoned District Court
opinion, we will affirm the District Court’s denial of the
requested preliminary injunction.
43