A three-judge panel of the Third Circuit Court of Appeals affirmed the trial court ruling. It held that the policy did not violate the students’ constitutional rights because it served a compelling state interest in not discriminating against transgender students. In addition, the policy was narrowly tailored to that interest by providing single-user accommodations for all students.
The policy also did not violate Title IX. According to the Third Circuit, Title IX prohibits discrimination based on sex in all educational programs that receive funds from the federal government. However, discrimination with regard to privacy facilities is exempt from that blanket prohibition. An institution “may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.” This exception is permissive—Title IX does not require that an institution provide separate privacy facilities for the sexes.
The students also failed to establish Title IX claims on a “hostile environment” theory. The students failed to provide any authority to suggest that a sex-neutral policy, like the district’s bathroom policy, can give rise to a Title IX claim. In addition, the court held that the mere presence of transgender students in bathrooms and locker rooms does not constitute sexual harassment so severe, pervasive, or objectively offensive so as to effectively deny the students’ equal access to the district’s resources and opportunities. In conclusion, the Third Circuit stated:
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.
The three-judge panel affirmed the trial court ruling, denying the students’ attempt to block the policy. Following the Third Circuit ruling, the students sought review by the entire Third Circuit Court of Appeals, but the court declined to rehear the case. The four students then appealed to the United States Supreme Court. The Supreme Court also declined to hear the case without comment and, thus, let stand the Third Circuit decision allowing transgender students to use facilities consistent with their gender identity.
The Third Circuit decision is Doe by & through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 533 (3d Cir. 2018), cert. denied sub nom. Doe v. Boyertown Area Sch. Dist., No. 18-658, 2019 WL 2257330 (U.S. May 28, 2019).