Students’ Privacy Claims Fail to Upend School District’s Transgender Restroom Policy

by Tucker Arensberg, P.C.
Contact

Doe v. Boyertown Area School District, 2017 WL 3675418 (E.D. Pa. 2017) (A Pennsylvania federal court denied a motion for a preliminary injunction in a case brought by four students (plaintiffs) in opposition to school policy permitting transgender students to use district restrooms and locker rooms aligning with their sexual identity instead of their biological sex).

Summary Background

A recent graduate and several current students of the Boyertown Area School District brought suit in the United States District Court for the Eastern District of Pennsylvania contending that the school district’s practice of allowing transgender students to use district restrooms and locker rooms aligning with their sexual identity instead of their biological sex violated their right to privacy and created a sexually hostile educational environment.

One male student complained that he saw a female, who was changing in the boys’ locker room for gym class, while he was in his underwear. He brought this to the administration’s attention and was told that the other student had permission to be there as a transgender male. The school offered him the opportunity to change in a private area rather than the boys’ locker room. However, the male student did not change for gym at all and lost some points on his grade. He also used restroom facilities less frequently out of concern for seeing students of the opposite sex in these areas.

Another male plaintiff indicated that, while changing in the locker room, a fellow student called his attention to another student in the locker room who was wearing a short gray top and short shorts. He stated this student was a girl and that he was partially undressed at the time. Subsequently, when entering the boys’ locker room, the student sought a sufficiently private area to avoid seeing or being seen by students of the opposite sex. Further, he limited his use of restrooms due to the practice.

A female student, upon seeing a student in the girls’ bathroom that she believed was male, reported the incident to the administration, whereupon she learned of the school’s policy allowing students of a different biological sex to use the bathrooms of the gender with which they identify. The student expressed privacy concerns when using the girls’ restrooms where a boy might hear her relieving herself or opening menstruation-related products. Sometimes thereafter, she used the nurse’s office and shower stalls with curtains in the locker room whenever she desired privacy.

The fourth plaintiff, also female, learned about the school’s practice from one of the male plaintiffs. She claimed to have experienced fear and distress about the possibility of a boy entering the girls’ room and noted girls often changed underwear in the locker room and had genitalia exposed.

The introduction to the court’s opinion aptly summarized the legal and cultural context of the issues presented by the students’ complaint:

“The current issue before the court — whether the court should issue a preliminary injunction prohibiting a school district from maintaining its practice . . . of allowing transgender students to use the bathrooms and locker rooms of the sex to which they identify — involves intricate and genuine issues relating to, inter alia, the personal privacy of high school students, a school district’s discretion and judgment relating to the conduct of students in its schools, the meaning of the word “sex” in Title IX, and the rights of all students to complete access to educational opportunities, programs, and activities available at school. The general issue of transgender persons’ access to privacy facilities such as bathrooms has recently received nationwide attention, and the issue of transgender students’ access to educational institutions’ bathrooms and locker rooms aligning to their gender identity has spurred litigation with unsurprisingly inconsistent results. With regard to cases involving transgender students, they have generally centered on whether precluding transgender students from using facilities consistent with their gender identity violates those students’ rights under the Equal Protection Clause of the Fourteenth Amendment or Title IX. And as to Title IX, which generally precludes public schools receiving federal financial assistance from discriminating “on the basis of sex,” this has resulted in a debate as to whether “sex” refers to biological sex (which the plaintiffs in this case define as a person’s classification as male or female at birth based on the presence of external and internal reproductive organs) or a broader and arguably more contemporary definition of sex that could include sex stereotyping or gender identity.”

“Here, the court is presented with four students, . . . claiming that the defendant school district’s practice of allowing transgender students (who the plaintiffs choose to identify as “members of the opposite sex” rather than as transgender students) to access bathrooms and locker rooms consistent with their gender identity violates (1) their constitutional right to privacy under the Fourteenth Amendment, (2) their right of access to educational opportunities, programs, benefits, and activities under Title IX because they are subject to a hostile environment, and (3) their Pennsylvania common law right of privacy preventing intrusion upon their seclusion while using bathrooms and locker rooms. The plaintiffs not only raise concerns with being in privacy facilities with transgender students regardless of whether the transgender students actually view them in a state of partial undress, but they raise concerns with the possibility of viewing a transgender person in a state of undress or having a transgender person present to hear them while they are attending to their personal needs while in the bathroom. At bottom, the plaintiffs are opposed to the mere presence of transgender students in locker rooms or bathrooms with them because they designate them as members of the opposite sex and note that, inter alia, society has historically separated bathrooms and locker rooms on the basis of biological sex to preserve the privacy of individuals from members of the opposite biological sex.”

Following an evidentiary hearing upon the students’ request for entry of a preliminary injunction, the federal court denied the motion concluding that the plaintiffs were unlikely to prevail on the merits of their claims.

Discussion

The court rejected the students’ argument that their right to privacy extends to protection from the transgender students hearing them use the restroom or observing them in a state of undress in locker rooms. It observed that no court had yet recognized a constitutional right as broad as that asserted by the students. Thus, the court explained that privacy claims under the Fourteenth Amendment require fact-intensive and context-specific analysis.

The court then examined the extent that the school’s practice infringed upon the plaintiffs’ privacy rights regarding the involuntary exposure of the intimate parts of the body (or even the possible disclosure of their partially clothed bodies) and whether the infringement is narrowly tailored to serve a compelling state interest. The school district demonstrated that no student was required to change in or use facilities which would make him or her uncomfortable and that it offered, or would be implementing, a range of privacy options, such as single-user restrooms and the installation of dividers in bathroom stalls and curtains in shower stalls. The court held that “[s]ince this matter does not involve any forced or involuntary exposure of a student’s body to or by a transgender person and [Boyertown] has instituted numerous privacy protections and available alternatives for uncomfortable students or to protect against the involuntary exposure of a student’s partially clothed or unclothed body, the plaintiffs have not shown that [Boyertown has] infringed upon their constitutional privacy rights.” Further, noting that several court decisions have concluded that, because some school districts have been found liable for school policies restricting transgender students’ use of restrooms, the court concluded that the school district had a compelling state interest not to discriminate against transgender students.

The court also concluded that the students’ likely could not prove a claim of a Title IX violation. The court agreed with the school district’s argument that all students were being treated equally under its practice and, therefore, the plaintiffs could not demonstrate that they were being discriminated against on the basis of sex. “The practice applies to both the boys’ and girls’ locker rooms and bathrooms, meaning that cisgender boys potentially may use the boys’ locker room and bathrooms with transgender boys and cisgender girls potentially may use the girls’ locker room and bathrooms with transgender girls.”

Practical Advice

This Boyertown case is the converse of suits brought to invalidate school policies precluding transgender students from using facilities consistent with their gender identity.

The court’s decision aligns with other recent federal court decisions that have found restrictive facility policies to violate the constitutional rights of transgender students.

It can be expected that these issues will continue to be litigated with potentially varying results until such matters finally are addressed by the United States Supreme Court. In 2016, the Supreme Court agreed to review a Fourth Circuit court ruling in the matter of Gloucester County School Board v. G.G., 822 F.3d 709 (4th Cir. 2016). However, with the change in federal administrations in 2017, the Departments of Justice and Education issued guidance documents that contravened those provided by the prior presidential administration. The Supreme Court remanded the case for further consideration by the appellate court in light of the revised guidance. Consequently, school districts will need to continue to monitor the continuing legal developments on these issues.

Meanwhile, the practice of allowing transgender students to use restroom and locker room facilities consistent with their gender identity is the course most likely to avoid successful claims against school districts.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Tucker Arensberg, P.C. | Attorney Advertising

Written by:

Tucker Arensberg, P.C.
Contact
more
less

Tucker Arensberg, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.