Full Third Circuit Court of Appeals Shuts Down Anti-Transgender Arguments in PA Case

By Shane Stahl • July 27, 2018 • 10:48 pm

On Thursday, the full composition of the U.S. Court of Appeals for the Third Circuit denied the losing school district’s request for en banc (full court) rehearing in Doe v. Boyertown. Simultaneously, the original 3-judge panel issued a revised ruling in the case.

The revised ruling keeps in place the core of the previously issued decision from May, determining that a Pennsylvania school district’s transgender-affirming policy does not violate anyone’s privacy. However, the new opinion walks back slightly the previously-issued decision’s determination that the school’s trans-affirming policy was required by Title IX of the Education Amendments of 1972. The unanimous panel decision from June declared that anti-transgender discrimination violates Title IX. The revised decision underlines that the facts of the Boyertown case did not require a determination on this question.

At the same time, the revised decision indicates that anti-transgender discrimination may, in fact, violate Title IX. The new opinion says [emphasis added]:

“We also agree with the School District’s position that barring transgender students from restrooms that align with their gender identity would itself pose a potential Title IX violation. … The School District, on the other hand, contends that barring transgender students from using privacy facilities that align with their gender identity would, itself, constitute discrimination under a sex-stereotyping theory in violation of Title IX. We need not decide that very different issue here. We note only that in 2017, the Seventh Circuit held that a school district’s policy of prohibiting transgender students from using bathrooms and locker rooms consistent with their gender identity violated Title IX because it discriminated against transgender students by subjecting them to ‘different rules, sanctions, and treatment than non-transgender students.’ Hence, BASH can hardly be faulted for being proactive in adopting a policy that avoids the issues that may otherwise have occurred under Title IX.”

Boyertown Area High School in Pennsylvania has long had a policy respecting the gender identity of transgender students – but in 2017, an anti-LGBTQ organization filed a lawsuit challenging this policy, on behalf of several non-transgender students, who claimed their privacy was threatened by transgender students using the restrooms and locker rooms that align with their gender identity. The notoriously anti-LGBTQ group Alliance Defending Freedom represented the plaintiffs. The ACLU and ACLU of Pennsylvania intervened in the case on behalf of the Pennsylvania Youth Congress, a coalition of LGBTQ youth leaders and youth organizations, including the Boyertown GSA.

The case is one of three this week that were decided in favor of transgender students. The very same day, US District Court Judge Timothy J. Corrigan, appointed to the bench by President George W. Bush, issued a decision in the case of Adams v. School Board of St. John’s County, Florida that found the district’s anti-transgender restroom policy was a violation of Title IX and the Equal Protection Clause of the 14th Amendment. On Tuesday, a federal judge in Oregon ruled that the Dallas, OR School District’s transgender-inclusive restroom policy would stand, and that forcing transgender students to use facilities inconsistent with their gender identity would “undoubtedly harm those students and prevent them from equally accessing educational opportunities and resources.”

These recent decisions are a clear indication that federal courts are arriving at a consensus that federal law forbidding discrimination based on “sex” already prohibits discrimination based on sexual orientation and gender identity. These cases about transgender students center on Title IX of the Education Amendments, but there is also a growing amount of case law affirming that Title VII of the Civil Rights Act and the Fair Housing Act bar discrimination based on sexual orientation and gender identity in employment and housing, respectively.

Learn more about litigation impacting LGBTQ Americans here in our Litigation Tracker.

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