A three-judge panel of the U.S. Court of Appeals for the 3rd Circuit took the unusual step on May 24 of announcing about an hour after hearing oral argument that it would unanimously affirm U.S. District Judge Edward G. Smith’s ruling from last summer denying a motion for a preliminary injunction by a group of parents and students seeking to stop the Boyertown (Pennsylvania) Area School District from continuing to implement a policy allowing transgender students to use locker rooms and bathrooms corresponding to their gender identities. Doe v. Boyertown Area School District, 2018 WL 2355999 (3rd Cir., May 24, 2018), affirming 276 F. Supp. 2d 324 (E.D. Pa., August 25, 2017).
Later that day, the court issued a brief “Judgement” written by Circuit Judge Theodore A. McKee, so brief that it can be quoted in full here: “We agree Plaintiffs have not demonstrated a likelihood of success on the merits and that they have not established that they will be irreparably harmed if their Motion to Enjoin the Boyertown School District’s policy is denied. We therefore Affirm the District Court’s denial of a preliminary injunction substantially for the reasons that the Court explained in its exceptionally well-reasoned Opinion of August 25, 2017. A formal Opinion will follow. The mandate shall issue forthwith. The time for filing a petition for rehearing will run from the date that the Court’s formal opinion is entered on the docket.” There was some suggestion in press reports that after hearing argument the court was concerned that the affirmance be effective immediately, since the school year would shortly end.
This is one of several similar cases filed around the country by Alliance Defending Freedom (ADF), an organization formed to advance the freedom of Christians to assert the primacy of their beliefs over any conflicting obligations imposed by law. ADF is a staunch opponent of LGBT rights, battled on the ramparts to oppose marriage equality and to support the ability of businesses operated by Christians to refuse to sell their goods and services for same-sex weddings. ADF has inserted itself into the “bathroom wars” by filing lawsuits on behalf of parents and allegedly cisgender students who oppose allowing transgender students to use single-sex facilities consistent with their gender identities. When Judge Smith issued his decision last August, a federal magistrate judge in Illinois, Jeffrey T. Gilbert, had issued a report and recommendation to U.S. District Judge Jorge L. Alonso, which recommended denying ADF’s motion for a preliminary injunction against a similar school district policy in Students & Parents for Privacy v. United States Department of Education, 2016 WL 6134121 (N.D. Ill., Oct. 18, 2016), and Judge Smith cited and relied on Judge Gilbert’s analysis at various points in his decision. Judge Alonso subsequently adopted Judge Gilbert’s Report and Recommendations, over the objections of ADF, on December 29, 2017, in Students & Parents for Privacy v. United States Department of Education, 2017 WL 6629520.
The plaintiffs in the Boyertown case argued three legal theories: first, that the district’s policy violates the constitutional privacy rights of non-transgender students under the 14th Amendment; second, that the school district’s policy violates Title IX’s requirement, as fleshed out in Education Department regulations, to provide separate restroom and locker room facilities for boys and girls; and third, that the policy violates Pennsylvania’s common law tort of invasion of privacy by intruding on the right of seclusion of non-transgender students. Judge Smith found that the record compiled by the parties in response to the plaintiffs’ motion for preliminary injunction showed that the plaintiffs were unlikely to prevail on any of these claims. The bulk of his lengthy opinion (which runs 83 pages, including about six pages of headnotes, in Lexis) is devoted to a careful delineation of the factual record upon which he based his legal analysis.
Judge Smith explored each of the three theories at length, rejecting ADF’s argument that high school students have some sort of fundamental constitutional right not to share restroom facilities with transgender students because of the possibility that a transgender student would see them in their underwear, and noting particularly that factual allegations by individual plaintiff students who had found themselves in restrooms with transgender students showed that even if such a “right” existed, it had not been violated in any instance.
As to the Title IX argument, plaintiff insisted that allowing transgender students to use the restrooms created a “hostile environment” for the non-transgender students, but Judge Smith, recurring to Judge Gilbert’s ruling in the Illinois case, observed that “the School District treats both male and female students similarly,” undercutting the argument that the District is discrimination in education opportunity “because of” the sex of the individual plaintiff students. “The practice applies to both the boys’ and girls’ locker rooms and bathrooms,” wrote Smith, “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. In addition, with regard to the transgender students, both transgender boys and transgender girls are treated similarly insofar as they, upon receiving permission from the School District, may use the locker rooms and bathrooms corresponding with their gender identity. Moreover, the School District is not discriminating against students regarding the use of alternative facilities if students are uncomfortable with the current practice insofar as those facilities are open to all students who may be uncomfortable using locker rooms or multi-user facilities… The School District’s similar treatment of all students I fatal to the plaintiffs’ Title IX claim.” Concluding on the Title IX point, Judge Smith wrote, “The plaintiffs have failed to cite to any case holding that a plaintiff can maintain a sexual harassment hostile environment claim when the allegedly sexually harassing party treats all individuals similarly and there is, as such, no evidence of gender/sex animus.” Simply put, the District was not “targeting” any student for particular adverse treatment because of his or her sex. Judge Smith also pointed out that the law of “hostile environment” as it has been developed under Title VII of the Civil Rights Act of 1964, to which courts refer in Title IX cases, sets a very high evidentiary bar for establishing a hostile environment, which he concluded could not be met by the plaintiffs’ factual allegations in this case.
As to the tort of invasion of privacy claim, Judge Smith noted that there were no allegations that any of the named defendants had personally invaded the privacy of any of the plaintiffs, as the plaintiffs’ factual allegations all related to two transgender students, identified as Student A and Student B, whose presence in locker rooms or restrooms was the subject of individual plaintiffs’ angst. But, of course, Students A and B were only present in those facilities because the District’s policy allowed them to be. “The court does not deny that an individual seeks seclusion in a bathroom toilet stall from being viewed by other people outside of the stall,” wrote Judge Smith, pointing out that the cases cited by the plaintiffs in support of their common law privacy claims “involve alleged invasions of privacy in bathroom stalls,” usually involving police surveillance of public restrooms. “Here,” Smith pointed out, “there are no allegations and the plaintiffs presented no evidence that any transgender student invaded their seclusion while they were in a bathroom stall. And similarly, although the plaintiffs indicate that viewing a person while in a bathroom would be ‘considered “highly offensive” by any reasonable person,’ the case cited involved an intrusion into a single bathroom stall and not the presence of someone in the common area of a multi-user facility.” After noting how the plaintiffs’ factual allegations about particular incidents involving transgender students in restrooms fell short of supporting the plaintiffs’ contentions about unwanted exposure of their bodies, Smith wrote, “the court does not find that a reasonable person would be offended by the presence of a transgender student in the bathroom or locker room with them, despite the possibility that the transgender student could possibly be in a state of undress more significant than Student A was in this case when the male plaintiffs same him.” He concluded similarly regarding the other incidents described by the plaintiffs, and concluded they had not shown a likelihood that they would be able to establish liability under Pennsylvania’s invasion of privacy tort.
That could be the end of Smith’s analysis, since a finding that plaintiffs are likely to prevail would be necessary to ground a preliminary injunction against the District’s policy, but Smith, to be thorough, analyzed the irreparable harm factor that courts consider, concluding that because the District was providing single-user alternatives the individual plaintiffs would not be irreparable harmed if the policy was allowed to continue in effect. He concluded as well that because these two factors weighed against granting the injunction, there was no need to perform the “balance of harms” analysis that would necessarily follow if the plaintiffs had prevailed on the first two factors.
As noted above, the 3rd Circuit’s brief Judgement issued on May 24 described Judge Smith’s opinion as “exceptionally well-reasoned,” so it is likely that the “formal opinion” to follow will run along similar lines and probably quote liberally from Judge Smith. Also, it would not be surprising were the court of appeals to give persuasive weight to decisions from other courts ruling on claims by transgender students to a right under Title IX and the 14th Amendment to use facilities consistent with their gender identity. In the course of deciding those cases, the courts necessarily considered the same factual and legal issues presented by the Parents & Students cases. In light of the judicial rulings so far in these “bathroom wars” cases, a consensus seems to have emerged in the federal judiciary that is part of a larger movement in the law in the direction of recognizing transgender civil rights claims under both the Equal Protection Clause in constitutional law and the statutory bans on discrimination because of sex.
In addition to ADF’s attorneys and the attorneys defending the school district, the court heard from ACLU attorneys representing the interests of transgender students in the Boyertown School District, including lead attorney Leslie Cooper with the ACLU LGBT Rights Project, lead attorney Mary Catherine Roper with the ACLU of Pennsylvania, and cooperating attorneys from Cozen O’Connor, a Philadelphia law firm.