Appeals Court Follows Bench Ruling With Opinion Backing Pro-Transgender Policy

By Mark Walsh — June 19, 2018 2 min read
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A federal appeals court has issued a written opinion following up on its unusual ruling from the bench in May that refused to block a Pennsylvania school district’s policy of permitting transgender students to use restrooms or locker rooms consistent with their gender identity.

“Forcing transgender students to use bathrooms or locker rooms that do not match their gender identity is particularly harmful,” says the unanimous opinion of a three-judge panel for the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia.

The Boyertown Area School District adopted its pro-transgender policy for the 2016-17 school year, and it was soon sued by a group of four other students who felt uncomfortable sharing restrooms and locker rooms with transgender students. With the help of Alliance Defending Freedom, a Scottsdale, Ariz.-based legal advocacy group, the four students sued and sought an injunction to block the school district’s policy.

A federal district court rejected their claims, which include the argument that the district’s pro-transgender policy violates their privacy rights and runs counter to Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded education programs.

The 3rd Circuit appeals panel heard arguments on May 24 in the case, and after a brief deliberation, ruled from the bench to uphold the district court’s rejection of an injunction to block the district’s policy. The panel indicated that an opinion would be forthcoming in the case, Doe v. Boyertown Area School District.

The June 18 written opinion by U.S. Circuit Judge Theodore A. McKee cited district court testimony and friend-of-the-court briefs to conclude that policies excluding “transgender individuals from privacy facilities that are consistent with their gender identities have detrimental effects on the physical and mental health, safety, and well-being of transgender individuals.”

Such exclusionary policies “exacerbate the risk of anxiety and depression, low self-esteem, engaging in self-injurious behaviors, suicide, substance use, homelessness, and eating disorders among other adverse outcomes,” McKee said.

The judge quoted a friend-of-the-court brief filed by the National Education Association in support of the school district. A policy such as that of the Boyertown district fosters an environment of inclusivity, acceptance, and tolerance, and such values serve an important educational function for both transgender and other students, the NEA’s brief said.

McKee expressed some sympathy for the privacy concerns of the students who did not wish to use restrooms or change in locker rooms where transgender students would be present. But he said those students remained free to use privacy stalls the district has provided or single-user restrooms. The burden on students who chose to use such facilities is much less than the harms imposed on transgender students who would be forced to use them if the students who brought the challenge prevailed, the judge said.

“The Boyertown Area School District has adopted a very thoughtful and carefully tailored policy in an attempt to address some very real issues while faithfully discharging its obligation to maintain a safe and respectful environment in which everyone can both learn and thrive,” McKee said.

A lawyer with Alliance Defending Freedom told Education Week last month, when the bench ruling came down, that its clients would consider an appeal of the 3rd Circuit court’s decision.

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A version of this news article first appeared in The School Law Blog.