Analysis Law and Policy

Finally, a Little Good News: Third Circuit Issues Resounding Defense of the Rights of Trans Students

Lisa Needham

The decision beats back the deliberately disingenuous and misinformed positions of law firms seeking to undermine LGBTQ rights.

In a welcome piece of good news, the Third Circuit Court of Appeals just issued a resounding defense of the rights of trans students.

Monday’s written decision in Doe v. Boyertown affirms the right of trans students to use the bathroom and locker room that correspond with their gender. But it does much more than that: It also explicitly acknowledges how important it is for school districts to promote acceptance and beats back the deliberately disingenuous and misinformed positions of Alliance Defending Freedom (ADF), a law firm that regularly represents anti-LGBTQ litigants like the ones involved in this case.

The Boyertown case proceeded a bit differently from others in which trans students have sought full inclusion in their day-to-day activities at school. Here, rather than a trans student seeking to have their rights affirmed, ADF represented a cisgender student, Joel Doe, who alleged that the Boyertown Area School District’s policy of allowing students to use the facilities that conform with their gender identity violated his rights, because he was required to use the bathroom and locker room with trans students. (Three other cisgender students eventually joined the lawsuit.)

Doe and ADF argued that this policy violated Doe’s Title IX rights, as Title IX prohibits discrimination based on sex. They wanted the court to find that “anatomical differences between the sexes” is what underpins Title IX-related regulations and therefore requires separate facilities for each “biological sex.” They also argued that allowing trans students to use appropriate facilities violated their right to privacy. Fortunately, the Third Circuit—which covers Delaware, Pennsylvania, and New Jersey—entirely rejected both of these arguments, upholding the Pennsylvania district court decision in the case.

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Another unusual aspect of the case was that the court announced a decision a few weeks ago, although it didn’t issue the written decision explaining its reasoning until Monday. That’s because the presiding judge in the case, Judge Theodore McKee, asked the three-judge panel to decide the matter immediately after oral arguments on May 24. He did so because many of the students at the heart of the case were about to graduate. It took the court only 15 minutes after arguments concluded to unanimously uphold the school district’s trans-inclusive policy.

One of the best things about the Third Circuit’s holding in this case is that it starts with a thorough explanation of “sex,” “gender,” “cisgender,” “transgender,” and more. It did so by relying upon testimony from an expert in gender dysphoria and gender-identity issues. Even the mere act of doing that was a rejection of the gender essentialism that pockmarked ADF’s initial filings in the case, where it argued that the only term that matters in Title IX jurisprudence is “sex” and that “sex” refers only to “one’s biological/anatomical status as either male or female” and that “sex is fixed at conception, binary, objectively verifiable, and rooted in our human reproductive nature.”

In contrast, the Third Circuit offered a much more nuanced explanation. It explained that while “sex” is defined as the “anatomical and physiological processes that lead to or denote male or female”, “gender” is a “broader societal construct” that encompasses how a “society defines what male or female is within a certain cultural context.” Further, it noted, someone’s “gender identity” is their “subjective, deep-core sense of self as being a particular gender.”

The Third Circuit also acknowledged the harm of policies that exclude trans students from using locker rooms and bathrooms that are consistent with their gender identity, noting that trans people disproportionately suffer from issues like anxiety and depression when gender identities are not addressed. When transgender students are addressed with their correct pronouns and allowed to use the proper facilities at school, the court said those students have “the same healthy psychological profile as their peers.” Conversely, the court noted, forcing trans students to use facilities that don’t match their gender identity can lead to behaviors like students fasting or dehydrating themselves so they can avoid using the restroom for the entire school day. In short, the Third Circuit clearly understood the psychological and mental harms that trans students face when their gender identities are denied.

Joel Doe and the other student plaintiffs had claimed the trans-inclusive policy violated their right to privacy because they were viewed by members of the “opposite” sex when partially clothed in a locker room. However, the district court found, and the Third Circuit agreed, that the school district’s policy served what is known as a “compelling interest”—a test where the government’s interest in regulating something is balanced against an individual’s right to be free of that regulation. The compelling interest here, the court held, was preventing discrimination against trans students. That interest was adequately balanced against any right to privacy the plaintiffs (now appellants, as they lost at the district court and appealed) in the lawsuit might claim.

In finding that there was a compelling interest in protecting trans students, the court also was required to determine that the policy enacted by the school district—allowing trans students to use the facilities that conform with their gender identities—was “narrowly tailored” to do so. The appellants in the case argued that it was not. In so arguing, the appellants tried to co-opt the very real harms that trans students face and alleged that the cisgender students suffered the same harms, such as restricting water intake in order to avoid using a bathroom at school. The Third Circuit did not express doubt that those harms existed, but it determined the harms were simply not as grave as the consequences trans students faced by being excluded from appropriate locker rooms and bathrooms, given that those consequences could give rise to severe mental health problems, including suicide. The court also overwhelmingly rejected the appellants’ argument that a truly narrow policy would be requiring transgender students to use single-user bathrooms:

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.

In discussing the privacy interests of the appellants, the court also dealt a blow to ADF’s position that the mere presence of trans students in a bathroom or locker room presents a risk and a threat. The court noted that the cases appellants were citing dealt with things like repeated voyeurism of women in bathroom stalls—conduct that had nothing to do with trans people and that was, in itself, inappropriate. There is nothing inappropriate, the court found, about simply having transgender students in a locker room or bathroom. There was nothing in the record suggesting that the transgender students had engaged in any inappropriate behavior while in the facilities. In other words, the appellants—and ADF— took issue with the presence, even the existence, of the trans students.

With that, the court disposed of the appellants’ privacy claim and did so in a fashion that affirmed the deep necessity of preventing discrimination against, and stigmatization of, trans students.

Additionally, the Third Circuit soundly rejected appellants’ Title IX claim that the school district’s policy met the standard of “hostile environment harassment.” It’s a relatively high bar to clear: The plaintiff has to prove that the harassment is so “severe, pervasive, or objectively offensive” that it “undermines and detracts from the victims’ educational experience that [he or she] is effectively denied equal access to an institution’s resources and opportunities.”

In dismissing this argument, the Third Circuit affirmed the lower court’s finding that the appellants never met their burden of showing that simply having trans students present in a locker room or bathroom was severe sexual harassment. There, as with the privacy claim, the appellants relied upon cases that involved actual harassment, such as a case where cisgender men entered a locker room occupied by cisgender women and leered at them, crowded them, and brushed up against them.

Here, the “harm” the appellants claimed to suffer was nothing more than something like a transgender student washing their hands in a bathroom or changing their clothes in a locker room. None of those types of behaviors, the court found, can lead to a Title IX hostile environment claim. In finding that, the court called out the appellants for what really underpinned their claim: unhappiness at the mere presence of the transgender students in the appropriate facilities.

In fact, the Third Circuit found that if the school district were to bar trans students from facilities that are proper for their gender identity, that could itself present a Title IX violation, because it would be engaging in a form of sex stereotyping. In this context, sex stereotyping occurs when someone is harmed due to their failure to conform with traditional assumptions about how someone of that gender should behave. Trans students, the court wrote, by definition do not conform to those stereotypes, and therefore would be discriminated against by a policy that stopped them from using gender-appropriate facilities. Finally, the Third Circuit noted that there was simply no discrimination based on sex here because everyone can use the facilities they wish to based on their gender identity.

The Third Circuit closed out the decision by noting that it now joins the First, Sixth, Seventh, Ninth, and Eleventh Circuits in establishing a variety of protection for transgender individuals in contexts ranging from schools to workplaces to prisons. It’s a remarkable and welcome string of wins, but this latest is especially satisfying, given how thoroughly it dismantles the claims of the appellants and their anti-LGBTQ attorneys, ADF.

When courts take a stand against gender essentialism, against misgendering of trans individuals, and against narrow readings of Title IX’s protections, we all win.

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