In a few recent court cases, cisgender students (someone whose gender corresponds with their sex at birth) have argued that sharing a restroom with a transgender student makes them feel uncomfortable and violates their constitutional right to privacy. This article explores a recent circuit court opinion (Doe v. Boyertown Area School District, 2018) that involves cisgender students who challenged a school’s policy that permitted transgender students to use the restroom that aligned with their gender identity. (Although the plaintiffs included multiple claims in their complaint, this piece focuses only on their constitutional right to privacy claim.)
The facts of the case and the court’s legal analysis present a meaningful opportunity to examine the practical ways in which school districts promote inclusive policies.
In 2017, school district officials at a Pennsylvania high school adopted a policy that permitted transgender students to use facilities that were consistent with their gender identity; permission was granted to students on a case-by-case basis. Four cisgender high school students alleged that this school policy violated their constitutional rights of bodily privacy, among other claims. Through a motion for a preliminary injunction, the plaintiffs sought to prevent the school district from implementing its policy. The district court found their arguments unavailing and did not uncover any violations of the plaintiffs’ constitutional privacy rights. The court observed that the plaintiffs did not show that they would be irreparably harmed if they were not granted an injunction. The 3rd U.S. Circuit Court of Appeals (binding in Delaware, New Jersey, and Pennsylvania) upheld this decision.
According to the 3rd Circuit Court of Appeals’ decision, even if one of the plaintiffs had been viewed by a transgender student in the restroom, it would not have resulted in a violation of the plaintiff’s constitutional right to privacy. It observed: “We decline to recognize such an expansive constitutional right to privacy—a right that would be violated by the presence of students who do not share the same birth sex. Moreover, no court has ever done so.” The circuit court also agreed with the district court that even if the plaintiffs had a constitutional right to privacy, the state had a compelling interest not to discriminate against transgender students, and it stated that the school district’s policy was narrowly tailored to achieve that interest.
To better understand the impact of policies and practices, the court turned to the testimony of Scott Leibowitz, “an expert in gender dysphoria and gender-identity issues in children and adolescents,” who stated that “forcing transgender students to use facilities that are not aligned with their gender identities ‘chips away and erodes at [the individual’s] psychological well-being and wholeness.’ ” In addressing the social, psychological, and medical harm that transgender students confront, the court found that school officials had a compelling state interest in protecting them from these harms. For example, it was noted that when transgender students are mistreated, it not only can lead to negative educational outcomes for them but can precipitate self-injurious behavior.
The court also addressed the need for inclusivity and tolerance in schools. While relying on the experiences of school officials, the court highlighted the benefits of diversity and the need for schools to prepare students for a diverse world. Thus, according to the court, this policy for transgender students benefits all students by promoting acceptance in the school. The court did express concern for the plaintiffs—who allegedly reduced their water intake to avoid sharing a restroom with transgender students—but explained how plaintiffs could use the single-user bathrooms in the school. The 3rd Circuit decision is significant because it was the first circuit court of appeals to address the constitutional right to privacy of cisgender students in a case involving an access policy for transgender students.
It should be noted that other federal district courts have also examined constitutional rights to privacy claims initiated by cisgender students in similar contexts. For example, in Oregon, a school district adopted a policy to allow transgender students to use restrooms and locker rooms that match their gender identity. Two cisgender high school students and three parents challenged the policy, alleging privacy concerns. They contended that although school officials had installed privacy stalls, there were gaps above and below the stall doors, which may result in a student inadvertently seeing them. In denying the cisgender students’ motion for a preliminary injunction, the federal district court found no such constitutional right. Similarly, a federal district court in Illinois denied the cisgender students’ motion for a preliminary injunction, rejecting the privacy argument.
When school officials have refused to allow transgender students to use restrooms that align with their gender identity for privacy reasons, sometimes courts have addressed these privacy concerns as well. In one case, a federal district court in Pennsylvania found no legitimate privacy interest. It noted that the layout of the facilities ensured adequate privacy; it reasoned that the stalls “afforded actual physical privacy from others viewing their external sex organs and excretory functions. Conversely, others in the restrooms are shielded from such views.”
Likewise, a federal district court in Virginia observed that there were “many other ways to protect privacy interests in a nondiscriminatory and more effective manner than barring [the transgender student] from using the boys’ restrooms.” And a federal district court in Ohio found the privacy argument to be “merely speculative.” Finally, the 7th Circuit Court of Appeals (binding in Indiana, Illinois, and Wisconsin) wrote that “[a] transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions.” Taken as a whole, these cases suggest that the privacy arguments initiated by cisgender students may face obstacles in court.
There is no Supreme Court case addressing this issue, and only a few lower court cases have done so. Moreover, the case law in this area is active. It is important for educational leaders to maintain up-to-date information on the status of current litigation, particularly in their jurisdiction. It is worth noting that the Boyertown decision—and most of the other cases that were mentioned—involved motions for a preliminary injunction. The usual role of a preliminary injunction is to help preserve the status quo, pending the outcome of litigation. However, the judge is also deciding whether there is a reasonable probability that the plaintiffs will prevail on the merits, and often the judge’s reaction to a preliminary injunction provides insight into the entirety of the litigation. Overall, the federal court decisions discussed in this article offered rebukes of the privacy argument. Of course, it is premature to identify a national trend in the results of these cases, but they do suggest that privacy arguments alleged by cisgender students may be futile within at least the jurisdictions included in this discussion.
Suzanne E. Eckes is a professor at Indiana University in Bloomington, is co-author of Principals Avoiding Lawsuits, and serves on the board of directors of the Education Law Association. Maria M. Lewis is an assistant professor in education policy studies at Pennsylvania State University in University Park and a faculty affiliate at Penn State Law.
Bd. of Educ. Highland Local Sch. Dist. v. U.S. Dep’t of Educ., 208 F. Supp.3d 850 (S.D. Ohio 2016).
Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (3d Cir. 2018).
Evancho v. Pine-Richland Sch. Dist., 237 F. Supp.3d 267 (W.D. Pa. 2017).
Grimm v. Gloucester Cnty. Sch. Bd., 302 F. Supp.3d 732 (E.D. Va. 2018).
Parents for Privacy v. Dallas Sch. Dist. No. 2, 326 F. Supp.3d 1075 (D. Or. 2018).
Students & Parents for Privacy v. United States Dep’t of Educ., No. 16-cv-4945, 2017 U.S. Dist. LEXIS 213091 (N.D. Ill. Dec. 29, 2017).
Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017).