The Stage is Set for the Third Circuit to Address Transgender Students’ Use of Sex-Segregated Facilities

On November 22, 2017, the United States District Court for the Middle District of Pennsylvania denied the Minerville Area School District’s motion to dismiss an eight year old transgender girl’s claim that the school’s policy prohibiting her from using the girls’ room violated Title IX and Equal Protection Clause.  Similar decisions have been previously rendered by Pennsylvania federal courts in both the Western District (Evancho v. Pine-Richland School District) and the Eastern District (Doe v. Boyertown Area School District) such that all District Courts throughout the Commonwealth have found in favor of the right of transgender students to use restrooms consistent with their gender identity.

In the above-referenced Boyertown matter, cisgender students (that is those whose biological sex matches their gender identity) alleged violations of their right to privacy and Title IX based upon observing and/or being observed by transgender students who were permitted to use restrooms and locker rooms consistent with their gender identity.  Once the District Court denied the cisgender students’ motion seeking a preliminary injunction to prevent the school from enforcing its policy, the students appealed the decision to the Third Circuit Court of Appeals.  The students filed their brief on November 10, 2017, and the school district’s brief is due on January 16, 2018.  Thus, at some point during 2018, the Third Circuit Court will issue an appellate decision addressing the rights of transgender students to use sex-segregated facilities such as restrooms and locker rooms.

Although the Boyertown matter is somewhat unique in that it is a lawsuit filed by cisgender students instead of transgender students, the implications for school districts are the same.  Should the Third Circuit Court agree with the District Court’s decision denying the cisgender students’ request for preliminary injunctive relief, such will be consistent with the previous lower court decisions referenced above.  This means that school districts across Pennsylvania may be required to permit transgender students to use sex-segregated facilities consistent with their gender identity or otherwise violate those students’ statutory and constitutional rights.

However, should the Third Circuit Court in the Boyertown matter render a decision in favor of the cisgender students and against the transgender student, this could lead to a change in existing law.  Under these circumstances, school districts with policies permitting transgender students to use sex-segregated facilities consistent with their gender identities may be subject to lawsuits filed by cisgender students claiming violations of their right to privacy and Title IX.  Thus, school districts that have policies consistent with the decisions rendered by the Pennsylvania federal district courts will need to review such policies in light of the upcoming appellate decision concerning Boyertown.

Please contact our School Law team and/or Litigation team with any questions that your district may be facing.