During the week of July 23, three federal courts issued welcome rulings about restroom access by transgender students at public schools — in Pennsylvania, Oregon, and Florida. In each case, the court agreed that schools are or may be obligated to allow transgender students to use restrooms consistent with their gender identity, and rejected arguments that allowing trans students to use those restrooms violated constitutional or statutory rights of cisgender students sharing facilities with them.
The most significant of the three rulings came from the Third Court of Appeals based in Philadelphia. In May, a three-judge panel of that court had unanimously affirmed District Judge Edward G. Smith’s decision to deny a preliminary injunction sought by cisgender students and their parents who objected to the Boyertown Area School District’s policy of letting trans students use facilities consistent with their gender identities.
The case was so clear-cut to the appellate panel that they issued a one-paragraph ruling shortly after the oral argument, indicating they would follow up with a full opinion later. The full opinion, written by Circuit Judge Theodore McKee, was issued on June 18, and was joined by Circuit Judge Patty Shwartz and Senior Circuit Judge Richard Nygaard. McKee was appointed by President Bill Clinton, Shwartz by Barack Obama, and Nygaard by Ronald Reagan.
The panel not only agreed with the district court in rejecting the constitutional and statutory challenge, but also addressed a “tangential” issue raised by the school district: that not letting transgender students use appropriate facilities could subject the district to potential liability under Title IX, the federal law banning sex discrimination by educational institutions receiving federal funds. This is a controversial position among Republican politicians, but it has won widespread support among federal judges.
The Obama administration formally took this position in a letter issued jointly by the Justice and Education Departments in 2016, which was then “withdrawn” by the Trump administration a year later. However, the Trump “withdrawal” document did not adopt any position on whether Title IX would require letting transgender students use such facilities, stating the matter should be decided by state and local officials — though, of course, Title IX is a federal statute. Last fall, Attorney General Jeff Sessions announced his view that federal sex discrimination laws, such as Title IX, do not forbid gender identity — or sexual orientation — discrimination. The Education Department’s Office for Civil Rights has stopped processing complaints under Title IX from transgender students regarding access to restrooms.
Given the Trump Administration position, it is not surprising that the Boyertown panel ruling did not sit well with some Republican appointees on the Third Circuit, including Judge Stephanos Bibas, who was named by the president. Alliance Defending Freedom (ADF), the religious right-wing litigation group representing the plaintiffs, petitioned for rehearing by the three-judge panel as well as by the full 11-judge circuit sitting “en banc.”
On July 26, the court announced that the en banc petition failed to win a majority vote of the circuit, but four members disagreed in a dissent written by Judge Kent Jordan and joined by Judges Michael Chagares, Thomas Hardiman (all three George W. Bush appointees) and Bibas. The dissent did not take issue with the school district’s “thoughtful and deliberative process” in adopting its policy but rather voiced “disagreement with the panel’s suggestion that it would have been a violation of federal law for the school district to adopt a policy requiring transgender students to either use a single-user bathroom or facilities corresponding to their biological sex.”
Echoing the Trump Administration position, Jordan wrote that the question whether Title IX extends to gender identity discrimination is not settled — and the Supreme Court has, in fact, not addressed the question. Jordan faulted the panel for appearing to accept the school district’s argument that its policy was necessary to avoid federal liability.
Apparently chastened by that dissent, the original three-judge panel voted to grant the motion for rehearing, but rather than schedule additional argument, it simply modified its opinion, issuing the new opinion on July 26. Even modified, however, the panel’s opinion drew criticism from the circuit’s four dissenters.
“The revised panel opinion claims that ‘requiring transgender students to use single user or birth-sex-aligned facilities is its own form of discrimination,’” Jordan complained, voicing unhappiness with the panel’s assertion that Boyertown “can hardly be faulted for… adopting a policy that avoids the issues that may otherwise have occurred under Title IX.”
As far as the dissenters were concerned, this comment was not necessary to decide the appeal and thus should not have been made.
But it was made, and seven of the 11 judges on the Third Circuit were content to let it stand. The panel’s position is consistent with the two other decisions issued last week, by District Judge Marco A. Hernandez, an Obama appointee, in a similar ADF lawsuit involving the Dallas, Oregon, school district, on July 24, and by District Judge Timothy Corrigan, a George W. Bush appointee, on July 26, in Lambda Legal’s suit on behalf of a transgender boy, Drew Adams, against the St. Johns County School District in Florida.
The Oregon case challenged a decision by Dallas School District No. 2 to let transgender students use restrooms, locker rooms, and showers that match their gender identity. Judge Hernandez’s decision granted the defendants’ motion to dismiss the case outright because the plaintiffs failed to state valid constitutional or statutory claims.
ADF’s imaginative complaint in Parents for Privacy v. Dallas School District advanced eight legal theories, the most significant being that a policy that might expose cisgender students to sharing single-sex facilities with trans students would violate their constitutional right to privacy and their parents’ due process fundamental right to direct the education and upbringing of their children.
Hernandez concluded, as had the original panel in the Boyertown case and, more significantly, the Chicago-based Seventh Circuit Court of Appeals in the case brought by Ash Whitaker, a transgender high school student, against his Wisconsin school district, that concerns for the privacy of cisgender students could not overcome the rights of trans students to benefit from non-discriminatory access to facilities consistent with their gender identities.
Judge Corrigan’s opinion in Drew Adams’ case confirmed the impression observers came away from the public hearing with: this is a judge who gets it when it comes to trans issues, having carefully studied the expert testimony and documentation Lambda submitted, much of it over the objections of the school district. Corrigan quickly accepted the proposition that Adams, who begins his senior year this fall, is a boy and should be treated as such by the school district, including for restroom access.
The plaintiff’s case was assisted by the careful way he handled his transition, including getting a new birth certificate and a new driver’s license designating him as male. And, the school district’s unwritten policy on restroom use contrasted with its policies regarding everything else; it was willing to treat Adams as a boy for all purposes except that one.
By the end of his freshman year, Adams’ transition had proceeded to the point where he was presenting as male and wanted to use the boys’ restrooms. He began his sophomore year doing so, but soon some girls who saw him enter the boys’ room complained, and he was pulled out of a class and told he was restricted to using single-user restrooms (at that time only in the administrative offices) or the girls’ restrooms. In time, the school added more single-user restrooms distributed around the high school’s campus, and Corrigan, having toured the school, concluded that they were reasonably conveniently located.
But that was not the point, because a key issue was the impact on Adams of being denied a major component of his transition — being recognized by his school as a boy and treated as such. Being required to walk past a boys’ restroom when he needed to use the facility in order to get to a single-user restroom was stigmatizing, singling him out as different and undermining his ability to fit in.
“Everyone agrees that boys should use the boys’ restroom… and that girls should use the girls’ restroom,” Corrigan wrote. “The parties disagree over whether Drew Adams is a boy. I can only answer that question with the evidence given to me at trial. Drew Adams says he is a boy and has undergone extensive surgery to conform his body to his gender identity; medical science says he is a boy; the State of Florida says so (both Adams’ Florida birth certificate and Florida driver’s license say he is a male); and the Florida High School Athletic Association says so. Other than at his school, Adams uses the men’s bathroom wherever he goes, including in this federal courthouse during the trial. Even the St. Johns County School Board regards Adams as a boy in every way, except for which bathroom he can use.”
The judge continued, “When confronted with something affecting our children that is new, outside of our experience, and contrary to gender norms we thought we understood, it is natural that parents want to protect their children… When it comes to his use of the bathroom, the law requires that he be treated like any other boy.”
Corrigan concluded that the school’s policy violated Adams’ equal protection rights under the 14th Amendment and his right to equal access to educational opportunity under Title IX, and that the rights of other students would not be violated by having to share facilities with him. Analyzing the constitutional issues, Corrigan noted that 11th Circuit’s precedent controlling on the court required him to apply “heightened scrutiny” to the school district’s justifications for its policies; the district had to come up with “exceedingly persuasive” reasons for subjecting Adams to unequal treatment, which it failed to do.
A major part of the school district’s argument was that its policy was intended to protect against situations where male students might pretend to be transgender in order to get access to the women’s restrooms, a ridiculous proposition for which the school could provide nothing more than speculation. The district also advanced a “gender fluidity” argument: that some students might vacillate from day to day as to their gender identification and use restrooms at their whim, creating an unmanageable and dangerous situation. Corrigan responded that he was deciding the case before him of Drew Adams, the plaintiff, who is not “gender fluid” and is not seeking the right to use whichever restroom he feels like on a given day.
Corrigan’s injunction focused on Adams and did not deal with transgender restroom access more broadly.
“The Court has had no occasion in the context of this case to determine what threshold of transition, if any, is necessary for the School Board to accommodate other transgender students,” the judge wrote.
In a footnote, however, Corrigan stated, “Of course, nothing prevents the School Board from using this decision as guidance for future situations involving other transgender students. Notably, for some transgender students, the policy the school currently has may be sufficient, as the evidence revealed that not every transgender student is prepared to use the restroom corresponding to their gender identity.”
Corrigan noted that in the Boyertown case from the Third Circuit, “permission for transgender students to use gender-specific facilities is granted on a case-by-case basis only after a student meets with trained and licensed counselors, and other school administrators as needed. Once a transgender student is granted permission to use the facilities matching his or her gender identity, that student is no longer permitted to use the facilities corresponding to his or her sex assigned at birth.”
So much for the “gender fluidity” argument.
Corrigan awarded Adams damages of $1,000 for emotional distress, noting, in rejecting a higher figure sought by him that he had made clear his lawsuit was mainly about restroom access, not about money. The plaintiff can, however, apply for attorneys’ fees and costs, which are likely to be substantial.