Third Circuit says Boyertown's transgender students can use restrooms corresponding to gender identity

By Nicholas Malfitano | Jun 27, 2018

PHILADELPHIA – A federal appellate court recently ruled that transgender students in Boyertown schools may continue to use the restroom facilities corresponding to their gender identity, marking a key victory for the LGBT advocacy community and a defeat for their ideological opponents.

The opinion on the matter was issued June 18 and written by U.S. Court of Appeals for the Third Circuit Judge Theodore A. McKee, and co-signed by his colleagues on the Third Circuit bench, Patty Shwartz and Richard L. Nygaard.

The initial litigation began with a number of anonymous Boyertown Area Senior High School students and their parents, backed by special interest groups, who filed suit in the U.S. District Court for the Eastern District Court of Pennsylvania.

They charged that the Boyertown Area School District’s policy of allowing transgender students to use bathrooms according to gender identity violated their fellow students’ violated the constitutional right to bodily privacy, Title IX protections and tort law in the Commonwealth of Pennsylvania.

It was a rationale that did not meet with judicial approval in that court.

After the plaintiffs lost their case, they appealed to the Third Circuit – but similarly, the federal appellate court did not concur with their presented argument.

“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,” McKee stated.

“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.”

McKee further cited District Court testimony from witness Dr. Scott Leibowitz, a noted expert in the field of gender-identity issues in children and adolescents, in explaining the repercussions of not allowing transgender students the ability to use facilities corresponding to their identity.

“Forcing transgender students to use bathrooms or locker rooms that do not match their gender identity is particularly harmful. It causes ‘severe psychological distress often leading to attempted suicide.’ The result is that those students ‘avoid going to the bathroom by fasting, dehydrating, or otherwise forcing themselves not to use the restroom throughout the day.’ This behavior can lead to medical problems and decreases in academic learning,” McKee said.

McKee and the Third Circuit Court applauded Boyertown Area Senior High School for its policy towards transgender students, while also taking the concerns of cisgender students such as the plaintiffs into account.

“Boyertown Area Senior High School 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,” McKee said.

Notably, this is the first federal appeals court decision to use the word “cisgender," meaning a person whose gender identity matches the sex assigned at birth.

The Third Circuit further rejected the plaintiffs’ attempts to draw parallels between the school district’s transgender student restroom policy and strip searches or being targets of voyeurism.

“Equally unpersuasive is the appellants’ reliance on cases discussing far more intrusive invasions of privacy than allowed by [the] policy. Cases about strip searches and a criminal conviction for voyeurism after a person repeatedly looked at women in the stalls of public restrooms are wholly unhelpful to our analysis,” McKee explained.

“Those cases involve inappropriate conduct as well as conduct that intruded into far more ‘intimate aspects of human affairs’ than here. There is simply nothing inappropriate about transgender students using the restrooms or locker rooms that correspond to their gender identity under the policy Boyertown Area Senior High School has initiated, and we reject appellants’ attempt to argue that there is.”

McKee added cisgender students who are uncomfortable using the same facilities as their transgender classmates can use single-occupant restroom facilities instead (which the school district already provides), and any practice of the contrary against transgender students would “undermine” the interest identified by the school district.

“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…requiring transgender students to use single user or birth-sex-aligned facilities is its own form of discrimination,” McKee said.

U.S. Court of Appeals for the Third Circuit case 17-3113

U.S. District Court for the Eastern District of Pennsylvania case 5:17-cv-01249

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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