Pennsylvania Record

Wednesday, October 23, 2019

Third Circuit once again upholds Boyertown school district's transgender student restroom policy


By Nicholas Malfitano | Jul 31, 2018

PHILADELPHIA – For the second time, the U.S. Court of Appeals for the Third Circuit ruled it will not stop a policy allowing transgender students in Boyertown schools to use the restroom facilities corresponding to their gender identity, a decision that could potentially send the case to the U.S. Supreme Court.

Third Circuit Court judges Theodore A. McKee, Patty Shwartz and Richard L. Nygaard released their most recent opinion in the case on July 26, once again rejecting arguments from Boyertown students who claimed the policy invaded their privacy and who were requesting the matter be re-heard by a full court – though it was not without dissenting voices.

After losing out in the Third Circuit’s original result in June, the plaintiff students submitted a request for re-hearing of the matter by the full appellate court. The original decision’s panel of McKee, Shwartz and Nygaard agreed to a new hearing before themselves, vacating their decision released June 18 and issued a revised version, which relied less on the question of whether the policy allegedly violated Title IX protections of the U.S. Constitution.

Of the 12 judges in total, eight showed majority support to the initial June ruling and voted against a re-hearing of the matter by the full court. However, four judges dissented from the majority, and voted in support of this same potential re-hearing: Third Circuit judges Kent A. Jordan, Michael A. Chagares, Thomas M. Hardiman and Stephanos Bibas.

Jordan authored the dissent on behalf of the judicial quartet, believing even the revised opinion did not correctly consider the impact of Title IX on Boyertown’s restroom policy for transgender students.

“The revised panel opinion rightly acknowledges that a school policy addressing transgender students’ use of bathrooms and locker rooms is a matter of high importance to Boyertown and its students. Given that public importance and the obvious sensitivity of the issues involved, one would have thought that the opinion would address only the facts at issue and then only to the extent necessary,” Jordan said.

“But the panel went beyond what was necessary when it chose to address Boyertown’s tangential argument that the school district would have run afoul of Title IX had it implemented a policy that confined transgender students to use of bathrooms and locker rooms designated for their biological sex.”

Jordan wrote that the original opinion’s suggestion that Boyertown “can hardly be faulted for…adopting a policy that avoids the issues that may otherwise have occurred under Title IX” was both “unnecessary” and “certainly open to debate.”

“The revised opinion is not as far out on a limb as the originally-published opinion was. The idea that Boyertown could not have designed a constitutionally acceptable policy that required transgender students to use single-user bathrooms and locker room facilities or ones corresponding to their biological sex was more explicit in that earlier opinion. Nevertheless, even the revised opinion appears to communicate the same unwarranted and unsupported implication. Although I appreciate the panel’s thoughtful effort to cure the overreach in its now-vacated opinion, it still wrongly suggests that our Court has reached decisions that it has not,” Jordan said.

Jordan added, “Reasonable people can and will disagree about the most appropriate way to address transgender students’ desire to select which bathroom or locker room facilities to use. It is a problem without a perfect solution, and we have not even begun to analyze those competing interests.”

Despite this point, the Third Circuit Court was unanimous in its belief that Boyertown’s transgender restroom policy does not violate anyone’s privacy rights.

American Civil Liberties Union attorney Ria Tabacco Mar, who argued the case on behalf of the school district, said in a statement issued last week that the revised opinion supports transgender students.

“Four judges said the court shouldn't have addressed the separate question whether practice is legally required under Title IX. But they agreed that local school boards have the right to allow trans students to use facilities that match their gender identity,” Mar said.

“[The revised] opinion, like the opinion issued last month, sends a powerful message of support to trans students, who all too often experience discrimination, harassment, and violence because of their gender identity.”

The students will now have until Aug. 9 to once again request a full court re-hearing, this time relating to the revised three-judge panel opinion just issued by judges McKee, Shwartz and Nygaard on July 26.

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 in their originally-published, now-vacated opinion released earlier this summer.

“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.

“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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