A full federal appeals court has declined to rehear a case in which a three-judge panel strongly endorsed the right of transgender student to use restrooms and locker rooms consistent with their gender identity. At the same time, the panel issued a revised opinion that still upholds a Pennsylvania school district’s pro-transgender student policy, but altered some of its reasoning.
The revised opinion by a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, and the full appeals court’s action, came July 26 in Doe v. Boyertown Area School District, a lawsuit challenging the district’s pro-transgender policy filed by four other students who felt uncomfortable sharing restrooms and locker rooms with transgender students.
“Forcing transgender students to use bathrooms or locker rooms that do not match their gender identity is particularly harmful” to them, the unanimous panel once again stated in the revised opinion.
The full 3rd Circuit court voted 8-4 not to reconsider the panel’s earlier decision (issued June 18). The four dissenters from that action issued an opinion saying they did not disagree with the panel’s affirmance of a federal district judge’s denial of relief to the students who challenged the school district’s pro-transgender policy. But they took issue with some of the panel’s reasoning on what Title IX of the Education Amendments of 1972 requires for schools’ treatment of transgender students.
Title IX prohibits discrimination “based on sex” in federally funded educational programs. There is a robust debate occurring in the federal courts and in legal circles about whether that language in the statute, as well as a decades-old Title IX regulation of the U.S. Department of Education, should now be interpreted to cover discrimination against transgender students.
The 3rd Circuit panel’s June 18 opinion in the Boyertown case had said that Title IX requires schools to allow transgender students to use facilities that match their gender identity. The revised opinion said it did not need to reach that question to find that the school’s policy was supportable. The revised opinion stresses that the court is rejecting the other students’ claims that the district’s policy created a “hostile environment” for them in violation of Title IX because it exposed them to transgender students in school restrooms and locker rooms.
The four 3rd Circuit judges who would have granted rehearing said the panel’s revised opinion “is not as far out on a limb” as the June 18 opinion was with respect to Title IX. But even in the revised opinion, the dissenters said, 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.”
The dissenters said the revised opinion still relies on a 2017 decision by the U.S. Court of Appeals for the 7th Circuit, in Chicago, which did hold that Title IX requires districts to allow transgender students to use facilities consistent with their gender identity.
The dissent from rehearing by the full court by Judge Kent A. Jordan was joined by Judges Michael A. Chagares, Thomas M. Hardiman, and Stephanos Bibas. Hardiman has twice been on President Donald Trump’s short list for U.S. Supreme Court vacancies.
The panel, in its revised opinion, did significantly reduce its discussion of the 7th Circuit case, Whitaker v. Kenosha Unified School District.
The full 3rd Circuit said the challengers of the Boyertown district’s policy could seek a rehearing of the panel’s revised opinion within 14 days. But it appears that the full court has put its cards on the table, and the more likely next step would be an appeal to the U.S. Supreme Court.
A version of this news article first appeared in The School Law Blog.