HRMT602 APUS Sexual Harassment and Transgender Bathroom Debacle Discussion This is a short discussion that should be at least 300 words. Instructions are attached. PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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
by and through his Parents John Jones and Jane Jones
BOYERTOWN AREA SCHOOL DISTRICT;
DR. BRETT COOPER, In his official capacity as Principal;
DR. E. WAYNE FOLEY, In his official capacity as Assistant
DAVID KREM, Acting Superintendent
PENNSYLVANIA YOUTH CONGRESS FOUNDATION
(Intervenor in D.C.)
Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Judge: Honorable Edward G. Smith
May 24, 2018
Before: McKEE, SHWARTZ and NYGAARD, Circuit
(Opinion Filed: June 18, 2018)
Cathy R. Gordon, Esq.
Jacob F. Kratt, Esq.
420 Fort Duquesne Boulevard
One Gateway Center, Suite 600
Pittsburgh, PA 15222
Randall L. Wenger, Esq. [ARGUED]
Jeremy L. Samek, Esq.
Independence Law Center
23 North Front Street
Harrisburg, PA 17101
Kellie M. Fiedorek, Esq.
Christiana M. Holcomb, Esq.
Alliance Defending Freedom
440 First Street, N.W.
Washington, D.C. 20001
Gary S. McCaleb, Esq.
Alliance Defending Freedom
15100 North 90th Street
Scottsdale, AZ 85260
Attorneys for Appellant
Michael I. Levin, Esq. [ARGUED]
David W. Brown, Esq.
Levin Legal Group, P.C.
1800 Byberry Road, Suite 1301
Huntingdon Valley, PA 19006
Attorneys for Appellees
Mary Catherine Roper, Esq.
American Civil Liberties Union of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19102
Ria Tabacco Mar, Esq. [ARGUED]
Leslie Cooper, Esq.
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004
Amanda L. Nelson, Esq.
45 Broadway, 16th Floor
New York, NY 10006
Harper Seldin, Esq.
1650 Market Street
One Liberty Place, Suite 2800
Philadelphia, PA 19103
Attorneys for Intervenor–Appellee
OPINION OF THE COURT
McKEE, Circuit Judge.
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
In an exceedingly thorough, thoughtful, and wellreasoned 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
A. The Setting.
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
“Gender” is a “broader societal construct” that
encompasses how a “society defines what male or female is
within a certain cultural context.” 3A 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
“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 sexsegregated 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
App. 393, 550.
App. 376-77, 379.
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
Br. for Amici Curiae American Academy of Pediatrics,
American Medical Association, et al., 17.
Id. at 18 (quoting Am. Psychol. Ass’n & Nat’l Ass’n of
Sch. Psychologists, Resolution on Gender and Sexual
Orientation Diversity in Children and Adolescents in Schools
Id. at 18–19 (citing Sandy E. James et al., Nat’l Center for
Transgender Equality, Report of the 2015 U.S. Transgender
Survey 114 (2016)).
Br. for Amici Curiae of the National PTA, GLSEN, et al., 7
(citing Lily Durwood et al., Mental Health and Self Worth in
Socially Transitioned Transgender Youth, 56 J. of the Am.
Academy of Child & Adolescent Psychiatry 116, 116 (2017)).
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 “world does not
Br. for Amici Curiae of the National PTA, GLSEN, et al.,
18 (citing Max Kutner, Denying Transgender People
Bathroom Access Is Linked to Suicide, NEWSWEEK (Dec.
16, 2016); Kristen Clements-Nolle, et al., Attempted Suicide
Among Transgender Persons: The Influence of Gender-Based
Discrimination and Victimization, 51 Journal of
Homosexuality 53, 63-65 (2006)).
Br. for Amici Curiae of the National PTA, GLSEN, et al.,
18 (citing Joseph Kosciw, et al., The 2015 National School
Climate Survey: The Experiences of Lesbian, Gay, Bisexual,
Transgender, & Queer Youth in Our Nation’s Schools 12-13,
Id. at 18–19 (citing Jody L. Herman, Gendered Restrooms
and Minority Stress: The Public Regulation of Gender and Its
Impact on Transgender People’s Lives, 19 J. of Pub. Mgmt.
& Soc. Pol’y 65, 74–75 (2013)).
appreciate or understand” transgender students. 24 In short, it is
“society reducing them to their genitals.” 25 Dr. Leibowitz also
noted that “hundreds of thousands of physicians in the United
States . . . take the position that individuals with gender
dysphoria should not be forced to use a restroom that is not in
accordance with their gender identity.” 26 We have already
noted the disparate suicide rates between transgender and
Prior to the 2016–17 school year, Boyertown Area
School District required students at Boyertown Area Senior
High School (“BASH”) to use locker rooms and bathrooms
that aligned with their birth-determined sex. 27 BASH changed
this policy in 2016 and for the first time permitted transgender
students to use restrooms and locker rooms consistent with
their gender identity. In initiating this policy, BASH adopted a
very careful process that included student-specific analysis.
Permission was granted on a case-by-case basis. 28
The District required the student claiming to be
transgender to meet with counselors who were trained and
licensed to address these issues and the counselors often
consulted with additional counselors, principals, and school
administrators. 29 Once a transgender student was approved to
use the bathroom or locker room that aligned with his or her
gender identity, the student was required to use only those
facilities. The student could no longer use the facilities
corresponding to that student’s sex at birth. 30
BASH has several multi-user bathrooms. 31 Each has
individual toilet stalls. 32 Additionally, BASH has between four
and eight single-user restrooms that are available to all
App. 638, 923–25.
students, depending on the time of day. 33 Four of these
restrooms are always available for student use. 34
The locker rooms at BASH consist of common areas,
private “team rooms,” and shower facilities. 35 Over the past
(approximately) two years, BASH has renovated its locker
rooms. The “gang showers” were replaced with single-user
showers which have privacy curtains. 36 BASH does not require
a student to change in the locker room prior to gym class,
although the student must change into gym clothes. 37 A student
who is uncomfortable changing in the locker room can change
privately in one of the single-user facilities, the private shower
stalls, or team rooms. 38
B. The Litigation.
Four plaintiffs—proceeding pseudonymously under the
names Joel Doe, Jack Jones, Mary Smith, and Macy Roe—
sued the District after it changed its bathroom and locker room
policy to the policy we have described above. 39 Their claims
were based on encounters between some of the plaintiffs and
transgender students in locker rooms or multi-user bathrooms.
The plaintiffs sought to enjoin BASH’s policy of permitting
transgender students to use the bathrooms and locker rooms
that aligned with their gender identities. They sought a
preliminary injunction on three grounds. First, the plaintiffs
alleged that the School District’s policy violated their
constitutional right to bodily privacy. Next, they claimed that
the School District’s policy violated Title IX of the Education
The plaintiffs included parents and guardians of some of
the anonymous students. The District Court provided a
detailed recitation of the factual background of this suit,
including the particular conduct each plaintiff alleges as the
basis for the alleged violation of a privacy interest. See Doe v.
Boyertown Area Sch. Dist., 276 F. Supp. 3d 324, 335–64
(E.D. Pa. 2017).
Amendments of 1972 (Title IX). 40 Finally, they alleged that the
policy was contrary to Pennsylvania tort law. After discovery
and evidentiary hearings, the District Court filed the extensive
and well-reasoned opinion we have already referred to, in
which it explained that the plaintiffs had not demonstrated that
they were likely to succeed on the merits of any of their claims
and that plaintiffs had not shown that they would be irreparably
harmed absent an injunction.
For reasons the court identified, it concluded that even
if the School District’s policy implicated the plaintiffs’
constitutional right to privacy, the state had a compelling
interest in not discriminating against transgender students. The
court also determined that the School District’s policy was
narrowly tailored to serve that interest. Accordingly, the
District Court ruled that even if a cisgender plaintiff had been
viewed by a transgender student, it would not have violated the
cisgender student’s constitutional right to privacy. We agree.
The District Court rejected the plaintiffs’ Title IX claim
for two reasons. First, it found that the School District’s policy
did not discriminate on the basis of sex, because it applied
equally to all students—cisgender male and cisgender female,
as well as transgender male and transgender female students—
alike. The court also concluded that the plaintiffs had not
identified any conduct that was sufficiently serious to
constitute Title IX harassment. The mere presence of a
transgender student in a locker room should not be objectively
offensive to a reasonable person given the safeguards of the
For essentially the reasons described above, the District
Court also declined to issue an injunction based on the
Pennsylvania tort of intrusion upon seclusion. It found that
there was insufficient evidence in the record to demonstrate
that a transgender student ever viewed a partially clothed
plaintiff, and that the presence of a transgender student would
not be highly offensive to a reasonable person.
The District Court rejected the plaintiffs’ theory of
irreparable harm that posited that the plaintiffs were being
86 Stat. 373, as amended 20 U.S.C. § 1681 et. seq.
forced to give up a constitutional right to use segregated locker
rooms and bathrooms. It noted that the School District
permitted the students to use the locker room facilities “without
limitation.” 41 Any student who was uncomfortable being in a
state of undress or going to the bathroom with transgender
students could use the single-user bathrooms or team rooms
that BASH has made available.
Having found that the plaintiffs had no likelihood of
success on the merits and did not face irreparable harm, the
District Court entered an order on August 25, 2017 denying the
injunction. This appeal followed. 42
II. DISCUSSION 43
Preliminary injunctive relief is an “extraordinary
remedy.” 44 It may be granted only when the moving party
shows “(1) a likelihood of success on the merits; (2) that [the
movant] will suffer irreparable harm if the injunction is denied;
(3) that granting preliminary relief will not result in even
greater harm to the nonmoving party; and (4) that the public
interest favors such relief.” 45 The movants must establish
entitlement to relief by clear evidence. 46 We review the denial
Doe v. Boyertown Area Sch. Dist., 276 F. Supp. 3d at 410.
Numerous amici filed briefs on behalf of the appellees, and
one group filed a brief on behalf of the appellants. At the
conclusion of briefing we heard argument. Recognizing the
time-sensitive nature of this appeal and the concerns of all of
the parents and students in the School District, as well as the
District itself, we adjourned to conference to determine if a
ruling could be made from the bench. After conferencing, the
panel voted to unanimously to affirm the ruling of the District
Court. We announced that decision and entered an
accompanying order. We now supplement that order with this
The District Court had jurisdiction pursuant to 28 U.S.C. §§
1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. §
Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d
Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008).
of a preliminary injunction for “an abuse of discretion, an error
of law, or a clear mistake in the consideration of proof.”47 We
exercise plenary review of the lower court’s conclusions of law
but review its findings of fact for clear error. 48
A. Likelihood of Success on the Merits
The District Court correctly concluded that the
appellants were not entitled to an injunction because none of
their claims are likely to succeed on the merits.
The District Court correctly
right to privacy claim was
unlikely to succeed on the
The appellants contend that the District Court
erroneously concluded they were unlikely to succeed on their
claim that the School District’s policy violated their
constitutional right to privacy. They assert that the District
Court (1) failed to recognize the “contours” of the right to
privacy; (2) failed to recognize that a policy opening up
facilities to persons of the opposite sex necessa…
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