Doe v. Boyertown Area Sch. Dist.
| Decision Date | 26 July 2018 |
| Docket Number | No. 17-3113,17-3113 |
| Citation | 897 F.3d 518 |
| Parties | Joel DOE, a Minor, BY AND THROUGH his Guardians John DOE and Jane Doe; Macy Roe; Mary Smith; Jack Jones, a minor, by and through his Parents John Jones and Jane Jones, Chloe Johnson, a minor by and through her Parent Jane Johnson; James Jones, a Minor by and through his Parents John Jones and Jane Jones, Appellants v. BOYERTOWN AREA SCHOOL DISTRICT; Dr. Brett Cooper, In his official capacity as Principal; Dr. E. Wayne Foley, In his official capacity as Assistant Principal ; David Krem, Acting Superintendent Pennsylvania Youth Congress Foundation (Intervenor in D.C.) |
| Court | U.S. Court of Appeals — Third Circuit |
Cathy R. Gordon, Jacob F. Kratt, Litchfield Cavo, 420 Fort Duquesne Boulevard, One Gateway Center, Suite 600, Pittsburgh, PA 15222, Randall L. Wenger [ARGUED], Jeremy L. Samek, Independence Law Center, 23 North Front Street, Harrisburg, PA 17101, Kellie M. Fiedorek, Christiana M. Holcomb, Alliance Defending Freedom, 440 First Street, N.W., Suite 600, Washington, D.C. 20001, Gary S. McCaleb, Alliance Defending Freedom, 15100 North 90th Street, Scottsdale, AZ 85260, Counsel for Appellants
Matthew J. Clark, Foundation for Moral Law, 1 Dexter Avenue, Montgomery, AL 36104, L. Theodore Hoppe, Jr., 2 South Orange Street, Suite 215, Media, PA 19063, Counsel for Amicus Appellants’
Michael I. Levin [ARGUED], David W. Brown, Levin Legal Group, P.C., 1800 Byberry Road, Suite 1301, Huntingdon Valley, PA 19006, Attorneys for Appellees
Mary Catherine Roper, American Civil Liberties Union of Pennsylvania, P.O. Box 60173, Philadelphia, PA 19102, Ria Tabacco Mar [ARGUED], Leslie Cooper, American Civil Liberties Union, 125 Broad Street, 18th Floor, New York, NY 10004, Amanda L. Nelson, Cozen O’Connor, 45 Broadway, 16th Floor, New York, NY 10006, Harper Seldin, Cozen O’Connor, 1650 Market Street, One Liberty Place, Suite 2800, Philadelphia, PA 19103, Attorneys for Intervenor–Appellee
Alice O. Brien, National Education Association, Office of General Counsel, 1201 16th Street, N.W., Washington, DC 20036, Omar Gonzalez-Pagan, Lambda Legal, 120 Wall Street, 19th Floor, New York, NY 10005, Cynthia C. Robertson, Pillsbury WinthropShaw Pittman, 1200 17th Street, N.W., Washington, DC 20036, Aaron M. Panner, Kellogg Hansen Todd Figel & Frederick, 1615 M. Street N.W., Suite 400, Washington, DC 20036, Maureen P. Alger, Kara C. Wilson, Cooley, 3175 Hanover Street, Palo Alto, CA 94304, Shannon P. Minter, Amy Whelan, National Center for Lesbian Rights, 870 Market Street, Suite 370, San Francisco, CA 94102, Nicholas S. Feltham, Drinker Biddle & Reath, One Logan Square, Suite 2000, Philadelphia, PA 19103, Terry L. Fromson, Women’s Law Project, 125 South 9th Street, Suite 300, Philadelphia, PA 19107, Mary J. Eaton, Wesley R. Powell, Willkie, Farr & Gallagher, 787 Seventh Avenue, New York, NY 10019, Ryan M. Moore, Dechert, 2929 Arch Street, 18th Floor, Cira Centre, Philadelphia, PA 19104, Jesse R. Loffler, Janice Mac Avoy, Fried Frank Harris Shriver & Jacobson, One New York Plaza, New York, NY 10004, Counsel for Amicus Appellees’
Before: McKEE, SHWARTZ and NYGAARD, Circuit Judges.
This appeal requires us to decide whether the District Court correctly refused to enjoin the defendant School District from allowing transgender students to use bathrooms and locker rooms that are consistent with the students’ gender identities as opposed to the sex they were determined to have at birth. The plaintiffs—a group of high school students who identify as being the same sex they were determined to have at birth (cisgender)—believe the policy violated their constitutional rights of bodily privacy, as well as Title IX, and Pennsylvania tort law. As we shall explain, we conclude that, under the circumstances here, the presence of transgender students in the locker and restrooms is no more offensive to constitutional or Pennsylvania-law privacy interests than the presence of the other students who are not transgender. Nor does their presence infringe on the plaintiffs’ rights under Title IX.
In an exceedingly thorough, thoughtful, and well-reasoned opinion, the District Court denied the requested injunction based upon its conclusion that the plaintiffs had not shown that they are likely to succeed on the merits and because they had not shown that they will be irreparably harmed absent the injunction. Although we amplify the District Court’s reasoning because of the interest in this issue, we affirm substantially for the reasons set forth in the District Court’s opinion.
Because such seemingly familiar terms as "sex" and "gender" can be misleading in the context of the issues raised by this litigation, we will begin by explaining and defining relevant terms. Our explanation is based on the District Court testimony of Dr. Scott Leibowitz, an expert in gender dysphoria
and gender-identity issues in children and adolescents, and the findings that the District Court made based upon that expert’s testimony.
"Sex" is defined as the "anatomical and physiological processes that lead to or denote male or female."1 Typically, sex is determined at birth based on the appearance of external genitalia.2
"Gender" is a "broader societal construct" that encompasses how a "society defines what male or female is within a certain cultural context."3 A person’s gender identity is their subjective, deep-core sense of self as being a particular gender.4 As suggested by the parenthetical in our opening paragraph, "cisgender" refers to a person who identifies with the sex that person was determined to have at birth.5 The term "transgender" refers to a person whose gender identity does not align with the sex that person was determined to have at birth.6 A transgender boy is therefore a person who has a lasting, persistent male gender identity, though that person’s sex was determined to be female at birth.7 A transgender girl is a person who has a lasting, persistent female gender identity though that person’s sex was determined to be male at birth.8
Approximately 1.4 million adults—or 0.6 percent of the adult population of the United States—identify as transgender.9 Transgender individuals may experience "gender dysphoria
," which is characterized by significant and substantial distress as a result of their birth-determined sex being different from their gender identity.10 Treatment for children and adolescents who experience gender dysphoria includes social gender transition and physical interventions such as puberty blockers, hormone therapy, and sometimes surgery.11
"Social gender transition" refers to steps that transgender individuals take to present themselves as being the gender they most strongly identify with.12 This typically includes adopting a different name that is consistent with that gender and using the corresponding pronoun set, wearing clothing and hairstyles typically associated with their gender identity rather than the sex they were determined to have at birth, and using sex-segregated spaces and engaging in sex-segregated activities that correspond to their gender identity rather than their birth-determined sex.13 For transgender individuals, an important part of social gender transition is having others perceive them as being the gender the transgender individual most strongly identifies with.14
Social gender transition can help alleviate gender dysphoria
and is a useful and important tool for clinicians to ascertain whether living in the affirmed gender improves the psychological and emotional function of the individual.15
Policies that exclude 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."16 These 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."17 The risk of succumbing to these conditions is already very high in individuals who are transgender. In a survey of 27,000 transgender individuals, 40% reported a suicide attempt (a rate nine times higher than the general population).18 Yet, when transgender students are addressed with gender appropriate pronouns and permitted to use facilities that conform to their gender identity, those students "reflect the same, healthy psychological profile as their peers."19
Forcing transgender students to use bathrooms or locker rooms that do not match their gender identity is particularly harmful. It causes "severe psychological distress often leading to attempted suicide."20 The result is that those students "avoid going to the bathroom by fasting, dehydrating, or otherwise forcing themselves not to use the restroom throughout the day."21 This behavior can lead to medical problems and decreases in academic learning.22
We appreciate that there is testimony on this record that the cisgender plaintiffs have also reduced water intake, fasted, etc. in order to reduce the number of times they need to visit the bathroom so they can minimize or avoid encountering transgender students there. For reasons we discuss below, we do not view the level of stress that cisgender students may experience because of appellees’ bathroom and locker room policy as comparable to the plight of transgender students who are not allowed to use facilities consistent with their gender identity. Given the majority of the testimony here and the District Court’s well-supported findings, those situations are simply not analogous.
Dr. Leibowitz testified that forcing transgender students to use facilities that are not aligned with their gender identities "chips away and erodes at [the individual’s] psychological wellbeing and wholeness."23 It can exacerbate gender dysphoria
symptoms by reinforcing that the ...
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