Third Circuit upholds transgender policy.

Parents of students in Boyertown Area School District in Pennsylvania claimed that the district was violating their children’s constitutional rights by allowing transgender students to use the bathrooms that corresponded to gender identity, rather than original biological sex. The case drew considerable interest from advocacy groups on both sides of this cultural issue as it worked its way to a Circuit Court.  The three-member panel of the court ruled decisively against the parents.


The district changed its policy in the 2016-17 school year.  Prior to that, all students were required to use the facility that matched their birth sex. But in 2016-17 the district allowed transgender students at the high school to use the facility that matched their gender identity.  For districts dealing with this issue, the court’s description of how the school went about this would be worth studying:

In initiating this policy [the high school] adopted a very careful process that included student-specific analysis.  Permission was granted on a case-by-case basis.

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. 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 facilities. The student could no longer use the facilities corresponding to that student’s sex at birth.

Moreover, the high school was well equipped to handle this:

[The high school] has several multi-user bathrooms. Each has individual toilet stalls. Additionally, [the high school] has between four and eight single-user restrooms that are available to all students, depending on the time of day.  Four of these restrooms are always available for student use.

The court relied heavily on expert opinion about the difficulties transgender students face:

…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.”  [That quote is from an earlier 7th Circuit case].

As this case illustrates, schools that make decisions about accommodating transgender students can be sued regardless of which decision is made.  The plaintiffs in this case claimed that their children’s right to privacy was being invaded.  The court did not see it that way, and particularly viewed any possible incursion on privacy as small potatoes compared to the harm that might befall a transgender student who was not accommodated.

Rumor has it that the Trump Administration may propose new Title IX regulations that would define “sex” as strictly limited to biological equipment bestowed at birth. If that happens, you can expect spirited litigation.  In fact, you can expect spirited litigation over this issue regardless.  So stay tuned.

This case is Doe v. Boyertown Area School District, decided by the 3rd Circuit Court of Appeals on July 26, 2018. We found it at 897 F.3d 518.


 Tomorrow: how do you feel about paying the fees of the lawyer who sued you?