Joel Doe v. Boyertown Area School District

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 17-3113
_____________

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.)

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 5-17-cv-01249)
District Judge: Honorable Edward G. Smith
_____________

Argued
May 24, 2018
____________
 Before: McKEE, SHWARTZ and NYGAARD, Circuit
Judges.

(Opinion Filed: June 18, 2018)
______________
Cathy R. Gordon, Esq.
Jacob F. Kratt, Esq.
Litchfield Cavo
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.
Suite 600
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

2
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.
Cozen O’Connor
45 Broadway, 16th Floor
New York, NY 10006

Harper Seldin, Esq.
Cozen O’Connor
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

3
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.

I. BACKGROUND
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
genitalia. 2

“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

1
App. 500.
2
App. 375.
3
App. 500.
4
App. 375.
4
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

5
App. 393, 550.
6
App. 375.
7
App. 2107.
8
App. 2107.
9
App. 376.
10
App. 376-77, 379.
11
App. 2110.
12
App. 2110.
13
App. 2110.
5
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

14
App. 2110.
15
App. 2111.
16
Br. for Amici Curiae American Academy of Pediatrics,
American Medical Association, et al., 17.
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
4 (2015)).
18
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)).
19
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)).
6
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

20
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)).
21
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,
GLSEN (2016)).
22
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)).
23
App. 395.
7
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
cisgender students.

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

24
App. 395.
25
App. 396.
26
App. 397.
27
App. 625.
28
App. 604.
29
App. 638, 923–25.
30
App. 931–32.
31
App. 612.
32
App. 612–13.
8
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

33
App. 613.
34
App. 616.
35
App. 617–19.
36
App. 619–20.
37
App. 618–19
38
App. 618–19.
39
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).
9
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
school’s policy.

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

40
86 Stat. 373, as amended 20 U.S.C. § 1681 et. seq.
10
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

41
Doe v. Boyertown Area Sch. Dist., 276 F. Supp. 3d at 410.
42
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
opinion.
43
The District Court had jurisdiction pursuant to 28 U.S.C. §§
1331 and 1343. We have jurisdiction pursuant to 28 U.S.C. §
1292(a)(1).
44
Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d
Cir. 2004).
45
Id.
46
Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008).
11
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
concluded that the
appellants’ constitutional
right to privacy claim was
unlikely to succeed on the
merits.

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 necessarily violates that
right; (3) erroneously concluded that the School District’s
policy advanced a compelling interest; and (4) incorrectly
found that the policy was narrowly tailored to serve that
interest. We reject each of these arguments in turn.

The appellants’ challenge to the School District’s policy
was brought as a civil rights claim pursuant to 42 U.S.C. §
1983. Section 1983 claims can succeed only if the underlying
act—here, the alleged exposure of the appellants’ partially
clothed bodies to transgender students whose birth-determined
sex differed from the appellants—violated a constitutional
right. 49 When a plaintiff’s § 1983 claim is premised on a

47
Kos Pharm., 369 F.3d at 708 (citation omitted).
48
Id. (citations omitted).
49
Doe v. SEPTA, 72 F.3d 1133, 1137 (3d Cir. 1995) (“A §
1983 action cannot be maintained unless the underlying act
violates a plaintiff’s [c]onstitutional rights.”).
12
violation of the constitutional right to privacy, it will succeed
only if it is “limited to those rights of privacy which are
fundamental or implicit in the concept of ordered liberty.” 50

The touchstone of constitutional privacy protection is
whether the information at issue is “within an individual’s
reasonable expectations of confidentiality.” 51 The Supreme
Court has acknowledged two types of constitutional privacy
interests rooted in the Fourteenth Amendment—“the
individual interest in avoiding disclosure of personal matters”
and the “interest in independence in making certain kinds of
important decisions.” 52 Based on the first principal described
above, we have held that a person has a constitutionally
protected privacy interest in his or her partially clothed body. 53

50
Id. (quoting Paul v. Davis, 424 U.S. 693, 713 (1976)
(alterations and internal quotation marks omitted)).
51
Doe v. Luzerne County, 660 F.3d 169, 175 (3d Cir. 2011)
(quoting Malleus v. George, 641 F.3d 560, 564 (3d Cir.
2011)).
52
Id. (citations omitted).
53
Id. at 177. Other Circuits have come to the same
conclusion. Brannum v. Overton Cty. School Bd., 516 F.3d
489, 494, 498 (6th Cir. 2008) (finding a violation of the
Fourth Amendment right to privacy when a school surveilled
partially clothed middle school students in their locker room,
and further noting that this is the “same privacy right . . .
located in the Due Process clause”); Poe v. Leonard, 282 F.3d
123, 136 (2d Cir. 2002) (“[T]here is a right to privacy in
one’s unclothed or partially clothed body.”); York v. Story,
324 F.2d 450, 455 (9th Cir. 1963) (“We cannot conceive of a
more basic subject of privacy than the naked body. The desire
to shield one’s unclothed [figure] from view of strangers, and
particularly strangers of the opposite sex, is impelled by
elementary self-respect and personal dignity.”). The District
Court noted that Doe v. Luzerne County did not explicitly
hold there was a constitutional right to privacy in an
individual’s unclothed or partially clothed body. However, by
concluding that Doe had a reasonable expectation of privacy
and remanding the case to determine the exact contours of
that right, we implicitly recognized that such a privacy right
exists. The District Court assumed the existence of the right,
and the parties seemingly agreed that the right exists. If there
13
 The appellants advance two main arguments in support
of their contention that their right to privacy was violated by
the School District’s policy of permitting transgender students
to use bathrooms and locker rooms that aligned with their
gender identities. Neither is persuasive.

First, the appellants claim that their right to privacy was
violated because the policy permitted them to be viewed by
members of the opposite sex while partially clothed. 54
Regardless of the degree of the appellants’ undress at the time
of the encounters, the District Court correctly found that this
would not give rise to a constitutional violation because the
School District’s policy served a compelling interest—
preventing discrimination against transgender students—and
was narrowly tailored to that interest.

The constitutional right to privacy is not absolute. 55 It
must be weighed against important competing governmental
interests. 56 Only unjustified invasions of privacy by the
government are actionable in a § 1983 claim. 57 That is, the
constitution forbids governmental infringement on certain
fundamental interests unless that infringement is sufficiently

were any doubt after Doe v. Luzerne County that the
constitution recognizes a right to privacy in a person’s
unclothed or partially clothed body, we hold today that such a
right exists.
54
See Br. for Appellants, 18 (“The privacy interest is vitiated
when a member of one sex is viewed by a member of the
opposite sex.” (citation omitted)).
55
Doe v. SEPTA, 72 F.3d at 1138.
56
Doe v. Luzerne County, 660 F.3d at 178; Sterling v.
Borough of Minersville, 232 F.3d 190, 195 (3d Cir. 2000)
(“In examining right to privacy claims, we, therefore, balance
a possible and responsible government interest in disclosure
against the individual’s policy interest.”).
57
See Doe v. SEPTA, 72 F.3d at 1138 (citing Whalen v. Roe,
429 U.S. 589, 602 (1977)); see also Olmstead v. United
States, 277 U.S. 438, 478–79 (1928) (Brandies, J.,
dissenting) (“every unjustifiable intrusion upon the privacy of
an individual . . . must be deemed a [constitutional] violation”
(emphasis added)).
14
tailored to serve a compelling state interest. 58 The District
Court found that the School District’s policy served “a
compelling state interest in not discriminating against
transgender students” and was narrowly tailored to that
interest. 59 We agree.

As set forth in detail above, transgender students face
extraordinary social, psychological, and medical risks and the
School District clearly had a compelling state interest in
shielding them from discrimination. There can be “no denying
that transgender individuals face discrimination, harassment,
and violence because of their gender identity.” 60 The risk of
experiencing substantial clinical distress as a result of gender
dysphoria is particularly high among children and may
intensify during puberty. 61 The Supreme Court has regularly
held that the state has a compelling interest in protecting the
physical and psychological well-being of minors. 62 We have

58
Reno v. Flores, 507 U.S. 292, 301–02 (1993). The District
Court found that this “compelling interest” analysis was the
appropriate level to review BASH’s policy. Doe v. Boyertown
Area Sch. Dist., 276 F. Supp. 3d at 390 (citing Reno, 507 U.S.
at 302). The parties do not explicitly challenge this choice.
Br. for Appellants, 27-33; Br. for Appellees, 30; Br. for
Intervenor-Appellee, 36. In other privacy-rights contexts, we
have found that an “intermediate standard of review” was
appropriate, and that the “more stringent ‘compelling interest
analysis’ would be used when the intrusion on an individual’s
privacy was severe.” Doe v. SEPTA, 72 F.3d at 1139–40.
Because we hold that BASH’s policy survives the more
stringent standard of review, we need not decide which
standard of review is appropriate here.
59
Doe v. Boyertown Area Sch. Dist., 276 F. Supp. 3d at 390.
60
Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1
Bd. of Educ., 858 F.3d 1034, 1051 (7th Cir. 2017).
61
App. 2276–78.
62
See Sable Commc’ns of Cal., Inc. v. F.C.C., 492 U.S. 115,
125 (1989) (“We have recognized that there is
a compelling interest in protecting the physical and
psychological well-being of minors. This interest extends to
shielding minors from the influence of literature that is not
obscene by adult standards.”); Ginsberg v. New York, 390
U.S. 629, 640 (1968) (a state “has an independent interest in
15
similarly found that the government has a compelling interest
in protecting and caring for children in various contexts. 63
Mistreatment of transgender students can exacerbate gender
dysphoria, lead to negative educational outcomes, and
precipitate self-injurious behavior. When transgender students
face discrimination in schools, the risk to their wellbeing
cannot be overstated—indeed, it can be life threatening. This
record clearly supports the District Court’s conclusion that the
School District had a compelling state interest in protecting
transgender students from discrimination.

Moreover, the School District’s policy fosters an
environment of inclusivity, acceptance, and tolerance. As the
appellees’ amicus brief from the National Education
Association convincingly explains, these values serve an
important educational function for both transgender and
cisgender students. 64 When a school promotes diversity and
inclusion, “classroom discussion is livelier, more spirited, and
simply more enlightening and interesting [because] the
students have the greatest possible variety of backgrounds.” 65
Students in diverse learning environments have higher
academic achievement leading to better outcomes for all
students. 66 Public education “must prepare pupils for

the well-being of its youth”); New York v. Ferber, 458 U.S.
747, 756–57 (1982) (“It is evident beyond the need for
elaboration that a State's interest in ‘safeguarding the physical
and psychological well-being of a minor’ is ‘compelling.’”
(quoting Globe Newspaper Co. v. Superior Court, 457 U.S.
596, 607 (1982))).
63
See, e.g., Croft v. Westmoreland Cty. Children & Youth
Servs., 103 F.3d 1123, 1125 (3d Cir. 1997) (noting that the
government has a compelling interest in the “protection of
children,” and in protecting children from abuse).
64
Br. for Amicus Curiae National Education Association, 7–
11.
65
Grutter v. Bollinger, 539 U.S. 306, 330 (2003).
66
Br. for Amicus Curiae National Education Association, 9–
10 (citing Stephen Brand et al., Middle School Improvement
and Reform: Development and Validation of a School- Level
Assessment of Climate, Cultural Pluralism and School Safety,
95 J. Educ. Psychol. 570, 571 (2003); John Rosales, Positive
School Cultures Thrive When Support Staff Included, NEA
16
citizenship in the Republic,” 67 and inclusive classrooms reduce
prejudices and promote diverse relationships which later
benefit students in the workplace and in their communities. 68
Accordingly, the School District’s policy not only serves the
compelling interest of protecting transgender students, but it
benefits all students by promoting acceptance.

As we have already noted, we do not intend to minimize
or ignore testimony suggesting that some of the appellants now
avoid using the restrooms and reduce their water intake in order
to reduce the number of times they need to use restrooms under
the new policy. Nor do we discount the surprise the appellants
reported feeling when in an intimate space with a student they
understood was of the opposite biological sex. 69 We cannot,
however, equate the situation the appellants now face with the
very drastic consequences that the transgender students must
endure if the school were to ignore the latter’s needs and
concerns. Moreover, as we have mentioned, those cisgender
students who feel that they must try to limit trips to the

Today (Jan. 10, 2017); N. Eugene Walls et al. Gay-Straight
Alliances and School Experiences of Sexual Minority Youth,
41 Youth & Soc’y 307, 323-25 (2010); Stephen T. Russell,
Are School Policies Focused on Sexual Orientation and
Gender Identity Associated with Less Bullying? Teachers’
Perspectives, 54 J. Sch. Psychol. 29 (2016)).
67
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681
(1986) (citation omitted).
68
Br. for Amicus Curiae National Education Association, 10
(citing Jeanne L. Reid & Sharon Lynn Kagan, A Better Start:
Why Classroom Diversity Matters in Early Education 9 (Apr.
2015)).
69
App. 276, 1943. To the extent that the appellants’ claim for
relief arises from the embarrassment and surprise they felt
after seeing a transgender student in a particular space, they
are actually complaining about the implementation of the
policy and the lack of pre-implementation communication.
That is an administrative issue, not a constitutional one. To
the extent that the appellants are expressing discomfort being
around students whom they define as different from
themselves, that discomfort does not implicate a privacy
interest, even when viewed through the lens of strict scrutiny.

17
restroom to avoid contact with transgender students can use the
single-user bathrooms in the school.

Assuming the policy is subject to strict scrutiny, it must
advance a compelling state interest and the means of achieving
that interest must be “specifically and narrowly framed to
accomplish that purpose.” 70 Having correctly identified a
compelling state interest, the District Court correctly held that
the School District’s policy was narrowly tailored. The
appellants contend that “a much more tailored solution is to
provide single-user accommodations.” 71 They reason that “all
students would be allowed to access the individual facilities,
[so] no stigma would attach to the professed transgender
students’ using them, and preserving the sex-specific
communal facilities to single-sex use would resolve all privacy
concerns.” 72

This argument is not only unpersuasive, it fails to
comprehend the depths of the problems the School District’s
policy was trying to remedy or the steps taken to address them.
The School District already provides single-user
accommodations for all students. Any student who is
uncomfortable changing around their peers in private spaces,
whether transgender or cisgender, may change in a bathroom
stall, single-user bathroom, or the private team rooms. 73 The
appellants seemingly admit that these accommodations
“resolve all privacy concerns.” 74 Yet they insist that the policy
should be changed to require that transgender students use
individual bathrooms if they do not wish to use the communal
facilities that align with their birth-determined sex. Not only
would forcing transgender students to use single-user facilities
or those that correspond to their birth sex not serve the
compelling interest that the School District has identified here,
it would significantly undermine it. 75 As the Court of Appeals

70
Grutter, 539 U.S. at 333 (quoting Shaw v. Hunt, 517 U.S.
899, 908 (1996)).
71
Br. for Appellants, 32.
72
Id.
73
App. 618–19.
74
Br. for Appellants, 32.
75
See Br. for Amici Curiae American Academy of Pediatrics
et al., 17–18. (“[F]orcing transgender students to use separate
18
for the Seventh Circuit has recognized, a school district’s
policy that required a transgender student to use single-user
facilities “actually invited more scrutiny and attention from his
peers.” 76 Adopting the appellants’ position would very
publicly brand all transgender students with a scarlet “T,” and
they should not have to endure that as the price of attending
their public school.

Nothing in the record suggests that cisgender students
who voluntarily elect to use single-user facilities to avoid
transgender students face the same extraordinary consequences
as transgender students would if they were forced to use them.
As we explain more fully below, requiring transgender
students to use single user or birth-sex-aligned facilities is its
own form of discrimination.

It is therefore clear that the District Court was correct in
concluding that the appellants are unlikely to succeed in
establishing a violation of their right to privacy based on a
transgender student potentially viewing them in a state of
undress in a locker room or restroom. The challenged policy is
narrowly tailored to serve a compelling governmental interest.
There is no constitutional violation.

The appellants also urge us to recognize constitutional
privacy protections for alleged violations that resulted from
conduct other than being viewed by transgender students in a
locker room or bathroom. They assert that “government actors
cannot force minors to endure the risk of unconsented intimate
exposure to the opposite sex as a condition for using the very
facilities set aside to protect their privacy.” 77 They claim that
their constitutional privacy rights were violated “when the
sexes intermingle[d]” in the bathrooms and locker rooms. 78
They also argue that the female appellants’ privacy rights are
violated if they are forced to attend to their menstrual hygiene
in a facility where members of the opposite sex may potentially

facilities sends a stigmatizing message that can have a lasting
and damaging impact on the health and well-being of the
young person.”).
76
Whitaker, 858 F.3d at 1045.
77
Br. for Appellants, 18 (emphasis added).
78
Id. at 27.
19
be present. 79 In other words, they contend that their
constitutional right to privacy is necessarily violated because
they are forced to share bathrooms and locker rooms with
transgender students whose gender identities correspond with
the sex-segregated space, but do not do not align with their
birth sex.

We reject the premise of this argument because BASH’s
policy does not force any cisgender student to disrobe in the
presence of any student—cisgender or transgender. BASH has
provided facilities for any student who does not feel
comfortable being in the confines of a communal restroom or
locker room. BASH has installed privacy stalls and set some
bathrooms aside as single-user facilities so that any student
who is uneasy undressing or using a restroom in the presence
of others can take steps to avoid contact. BASH’s policy does
not compel a privacy violation for any student.

In any event, 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. As counsel for the
School District noted during oral argument, the appellants are
claiming a very broad right of personal privacy in a space that
is, by definition and common usage, just not that private.
School locker rooms and restrooms are spaces where it is not
only common to encounter others in various stages of undress,
it is expected. The facilities exist so that students can attend to
their personal biological and hygienic needs and change their
clothing. As the Supreme Court has stated, “[p]ublic school
locker rooms . . . are not notable for the privacy they afford.”80

Thus, we are unpersuaded to the extent that the
appellants’ asserted privacy interest requires protection from
the risk of encountering students in a bathroom or locker room
whom appellants identify as being members of the opposite
sex. As the Seventh Circuit noted in Whitaker “[a] transgender
student’s presence in the restroom provides no more of a risk

79
Id. at 26. We note that the appellants do not allege that the
female plaintiffs ever actually tended to their periods in the
presence of a transgender female student.
80
Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646, 657 (1995).
20
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.” 81

None of the cases cited by the appellants is to the
contrary. 82 For example, in their brief and at argument, they
placed substantial reliance on Faulkner v. Jones 83 for the
proposition that “society [has] undisputed[ly] approv[ed]
separate public restrooms for men and women based on
privacy concerns. The need for privacy justifies separation . . .
.” 84 But that case did not recognize a constitutional mandate
that bathrooms and locker rooms must be segregated by birth-
determined sex. Although it acknowledged that privacy
concerns may justify separate facilities for men and women in
certain circumstances, 85 it did not hold that the Constitution
compels separate bathroom facilities. Moreover, as we have
explained and as the District Court more thoroughly described,
BASH has carefully crafted a policy that attempts to address
the concerns that some cisgender students may have. To its
credit, it has done so in a way that recognizes those concerns
as well as the needs, humanity, and decency of transgender
students.

The appellants’ reliance on Chaney v. Plainfield
Healthcare Center 86 is similarly unconvincing. That was an
appeal from a Title VII suit brought against a nursing home
after a Black nursing assistant was fired for protesting a
patient’s demand that he receive care only from White nursing
aids. 87 The court distinguished medical care based on race

81
Whitaker, 858 F.3d at 1052.
82
Br. for Appellee, 15–31.
83
10 F.3d 226 (4th Cir. 1993).
84
Br. for Appellants, 17 (alterations added) (quoting
Faulkner, 10 F.3d at 232).
85
Faulkner, 10 F.3d at 232 (“In the end, distinctions in any
separate facilities provided for males and females may be
based on real differences between the sexes, both in quality
and quantity, so long as the distinctions are not based on
stereotyped or generalized perceptions of differences.”).
86
612 F.3d 908, 913 (7th Cir. 2010).
87
Chaney, 612 F.3d at 910–12.
21
from medical care based on sex, noting that just as “the law
tolerates same-sex restrooms or same-sex dressing rooms . . .
to accommodate privacy needs, Title VII allows an employer
to respect a preference for same-sex health providers, but not
same-race providers.” 88 Like Faulkner, Chaney held that the
Constitution tolerates single-sex accommodations. It did not
hold that the constitution demands it.

Equally unpersuasive is the appellants’ reliance on
cases discussing far more intrusive invasions of privacy than
allowed by BASH’s policy. Cases about strip searches 89 and a
criminal conviction for voyeurism after a person repeatedly
looked at women in the stalls of public restrooms 90 are wholly
unhelpful to our analysis. Those cases involve inappropriate
conduct as well as conduct that intruded into far more “intimate
aspects of human affairs” than here. 91 There is simply nothing
inappropriate about transgender students using the restrooms
or locker rooms that correspond to their gender identity under
the policy BASH has initiated, and we reject appellants’
attempt to argue that there is. Appellants do not contend that
transgender Students A or B did anything remotely out of the
ordinary while using BASH’s facilities. Indeed, the appellants’
privacy complaint is not with transgender students’ conduct,
but with their mere presence. We have already explained that
the presence of transgender students in these spaces does not
offend the constitutional right of privacy any more than the
presence of cisgender students in those spaces.

In an argument that completely misses (or deliberately
ignores) the reason for the disputed policy or the circumstances
it addresses, the appellants insist that it is improper to consider
a student’s transgender status when conducting this privacy
analysis and that we must only look at the student’s anatomy. 92
We disagree. Constitutional right to privacy cases “necessarily

88
Id. at 913.
89
Canedy v. Boardman, 16 F.3d 183, 185–86, 188 (7th Cir.
1994).
90
State v. Lawson, 340 P.3d 979 (Wash. App. 2014).
91
Doe v. Luzerne County, 660 F.3d at 176 (quoting Nunez v.
Pachman, 578 F.3d 228, 232 (3d Cir. 2009)).
92
Br. for Appellants, 10–12.
22
require fact-intensive and context-specific analyses.” 93 Bright
line rules cannot be drawn. 94 Put simply—the facts of a given
case are critically important when assessing whether a
constitutional right to privacy has been violated. A case
involving transgender students using facilities aligned with
their gender identities after seeking and receiving approval
from trained school counselors and administrators implicates
different privacy concerns than, for example, a case involving
an adult stranger sneaking into a locker room to watch a
fourteen year-old girl shower. The latter scenario—taken from
a case the appellants rely upon 95— is simply not analogous to
the circumstances here.
1. The District Court
correctly concluded that
the appellants’ Title IX
claim was unlikely to
succeed on the merits.

The District Court rejected the appellants’ Title IX
claim because the School District’s policy treated all students
equally and therefore did not discriminate on the basis of sex,
and because the appellants had failed to meet the elements of a
“hostile environment harassment” claim. We again agree. We
also agree with the School District’s position that barring
transgender students from restrooms that align with their
gender identity would itself pose a potential Title IX violation.

Title IX prohibits discrimination based on sex in all
educational programs that receive funds from the federal
government. 96 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.” 97 This exception is

93
Doe v. Luzerne County, 660 F.3d at 176.
94
Id.
95
People v. Grunau, No. H015871, 2009 WL 5149857 (Cal.
Ct. App. Dec. 29, 2009) (unpublished memorandum opinion).
96
20 U.S.C. § 1681(a).
97
34 C.F.R. § 106.33.
23
permissive—Title IX does not require that an institution
provide separate privacy facilities for the sexes.

Title IX also supports a cause of action for “hostile
environment harassment.” 98 To recover on such a claim, a
plaintiff must establish sexual harassment that is so severe,
pervasive, or objectively offensive and that “so undermines
and detracts from the victims’ educational experience that [he
or she] is effectively denied equal access to an institution’s
resources and opportunities.” 99 To support a claim of hostile
environment harassment, a plaintiff must demonstrate that the
offensive conduct occurred because of his or her sex. 100

Title IX’s “hostile environment harassment” cause of
action originated in a series of cases decided under Title VII of

98
DeJohn v. Temple Univ., 537 F.3d 301, 316 n.14 (3d Cir.
2008) (citation omitted).
99
Id. (alterations in original) (citation omitted). We recently
noted that we have not always been consistent in stating
whether a plaintiff claiming sexual harassment must prove the
harassment was “severe or pervasive” or “severe and
pervasive.” Castleberry v. STI Grp., 863 F.3d 259, 263–64
(3d Cir. 2017) (emphasis added). Much of the confusion
stems from the fact that the Supreme Court has used both the
conjunctive and the disjunctive to describe the plaintiff’s
burden. Compare Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57, 67 (1986) (“For sexual harassment to be actionable, it
must be sufficiently severe or pervasive . . . .”), with Davis
Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526
U.S. 629, 633 (1999) (concluding that an action for Title IX
harassment “will lie only for harassment that is so severe,
pervasive and objectively offensive that it effectively bars the
victim’s access to an educational opportunity or benefit”). In
Castleberry, we concluded that the “correct standard is severe
or pervasive. Castleberry, 863 F.3d at 264. Accordingly, we
will proceed using the disjunctive inquiry here.
100
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
81 (1998) (holding, in the Title VII context, that a plaintiff
“must always prove that the conduct at issue . . . constituted
discrimination because of . . . sex.” (internal quotations
omitted)).
24
the Civil Rights Act of 1964 (“Title VII”). 101 The Supreme
Court has “extended an analogous cause of action to students
under Title IX.” 102 Title VII cases are therefore instructive. 103

Title VII prohibits employers from discriminating based
on sex. 104 In Oncale, the Supreme Court considered whether
Title VII prohibited “discrimination because of sex” when the
harasser and the harassed employee were the same sex. 105 In
concluding that Title VII could support such a claim, the Court
held that Title VII is concerned only with “discrimination
because of sex.” 106 It noted that the Court had never held that
“workplace harassment, even harassment between men and
women, is automatically discrimination because of sex merely
because the words used have sexual content or
connotations.” 107 Rather, “the critical issue . . . is whether
members of one sex are exposed to disadvantageous terms or
conditions of employment to which members of the other sex
are not exposed.” 108 The plaintiffs in a Title VII action must
therefore always “prove that the conduct at issue was not
merely tinged with offensive sexual connotations, but actually
constituted discrimination because of sex.” 109 The same
requirement holds true for Title IX claims.

The appellants have not provided any authority—either
in the District Court or on appeal—to suggest that a sex-neutral
policy can give rise to a Title IX claim. Instead, they simply

101
42 U.S.C. § 2000e et seq.
102
Saxe v. State College Area Sch. Dist., 240 F.3d 200, 205
(3d Cir. 2001).
103
Id. Courts have frequently looked to Title VII authority for
guidance with Title IX cases. See, e.g., Olmstead v. L.C. ex
rel. Zimring, 527 U.S. 581, 616 n.1 (1999) (“This Court has
also looked to its Title VII interpretations of discrimination in
illuminating Title IX.” (collecting cases)).
104
42 U.S.C. § 2000e-2.
105
Oncale, 523 U.S. at 76.
106
Id. at 80.
107
Id.
108
Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25
(1993) (Ginsburg, J., concurring)).
109
Id. at 81 (internal alterations, emphasis, and quotation
marks omitted).
25
hypothesize that “harassment” that targets both sexes equally
would violate Title IX; that is simply not the law. 110 The
touchstone of both Title VII and Title IX claims is disparate
treatment based on sex. 111 The School District’s policy allows
all students to use bathrooms and locker rooms that align with
their gender identity. It does not discriminate based on sex, and
therefore does not offend Title IX.

The District Court also correctly found that the
appellants had not met their burden of establishing that the
mere presence of transgender students in bathrooms and locker
rooms constitutes sexual harassment so severe, pervasive, or
objectively offensive and “that so undermines and detracts
from the victims’ educational experience that [the plaintiff] is
effectively denied equal access to an institution’s resources and
opportunities.” 112 That is particularly true given the many
safeguards the School District put in place as part of the
challenged policy.

Rather than relying on relevant legal authority to
establish that the mere presence of a transgender student in a
locker room or bathroom rises to the level of harassment, the
appellants again cite inapposite cases that involve egregious
harassment. That is not surprising since we have found no
authority that supports the appellants’ claims. Two cases that
the appellants attempt to analogize to their situation are
particularly illustrative of the weakness of their position—

110
See Pasqual v. Metro. Life Ins. Co., 101 F.3d 514, 517 (7th
Cir. 1996) (“Harassment that is inflicted without regard to
gender, that is, where males and females in the same setting
do not receive disparate treatment, is not actionable because
the harassment is not based on sex.”); Henson v. City of
Dundee, 682 F.2d 897, 904 (11th Cir. 1982) (“[T]here may be
cases in which a supervisor makes sexual overtures of both
sexes or where the conduct complained of is equally offensive
to male and female workers. In such cases, [the] harassment
would not be based on sex because men and women are
accorded like treatment . . . and the plaintiff would have no
remedy under Title VII.”).
111
Oncale, 523 U.S. at 80.
112
DeJohn, 537 F.3d at 316 n.14 (citations omitted).
26
Lewis v. Triborough Bridge and Tunnel Authority 113 and
Schonauer v. DCR Entertainment Inc. 114 Lewis involved
harassment that is worlds apart from anything in the present
record. There, cisgender men not only entered a locker room
while cisgender female employees were changing, they
“leer[ed]” at them, “crowd[ed] the entrance to the locker room,
forcing [them] to ‘run the gauntlet[,]’ and brush[ed] up against
them.” 115 When a supervisor was informed, he referred to the
female employees as “cunts” and “the biggest bunch of fucking
crybabies.” 116 Any comparison to the circumstances the
appellants face here is patently frivolous.

Schonauer is also distinguishable. There, the plaintiff
was employed as a beverage server at a topless nightclub and
alleged that she had been harassed by a manager. 117 In addition
to entering the women’s changing facility, the manager
repeatedly encouraged the plaintiff to enter nude dance
contests, asked questions about her sexual fantasies, and
probed her sexual history. 118 When the plaintiff resisted these
advances, she was fired. 119 The Washington Court of Appeals
found that this behavior could constitute harassment not simply
because the manager entered the changing facility, but because
he pressed the plaintiff to “provide sexually explicit
information and to dance on stage in a sexually provocative
way.” 120

The District Court no doubt realized that the appellants’
attempt to seize upon Lewis and Schonauer demonstrated the
weakness of their arguments. Here, there are no allegations of
harassment, let alone any that are even remotely as “severe,
pervasive, [or] objectively offensive.” 121 Still, the appellants

113
77 F. Supp. 2d 376, 377–78 (S.D.N.Y. 1999).
114
905 P.2d 392, 396–97, 400–01 (Wash. Ct. App. 1995).
115
77 F. Supp. 2d at 377.
116
Id. at 378.
117
Schonauer, 905 P.2d at 396.
118
Id. at 396–97.
119
Id. at 397.
120
Id. at 400.
121
DeJohn, 537 F.3d at 316 n.14; Castleberry, 863 F.3d at
264.
27
unconvincingly try to equate mere presence in a space with
harassing activity.

This case is far more analogous to Cruzan v. Special
School Dist., No. 1, 122 a Title VII case from the Court of
Appeals for the Eighth Circuit. Cruzan held that a transgender
individual in a bathroom did not create a hostile environment
because there was no evidence that the individual “engaged in
any inappropriate conduct other than merely being present in
the women’s faculty restroom.” 123 That is, a transgender
person in a restroom did not create an environment that was
“permeated with discriminatory intimidation, ridicule, and
insult” as required to sustain a harassment claim under Title
VII. 124 We agree with the Eight Circuit’s conclusion. As we
have emphasized, the appellants’ real objection is to the
presence of transgender students, not to any “environment”
their presence creates. Indeed, the allegations here include an
assertion that a cisgender student was harassed merely by a
transgender student washing that student’s own hands in a
bathroom or changing in a locker room. That is not the type of
conduct that supports a Title IX hostile environment claim. 125
The District Court recognized this and correctly ruled that this
claim was unlikely to succeed.

The School District, on the other hand, contends that
barring transgender students from using privacy facilities that
align with their gender identity would, itself, constitute
discrimination under a sex-stereotyping theory in violation of
Title IX. 126 We need not decide that very different issue here.
We note only that the School District’s argument finds support
in the very persuasive opinion from the Seventh Circuit in
Whitaker, and the analysis there supports the District Court’s
conclusion that appellants were not likely to succeed on the
merits of their Title IX claim.

122
294 F.3d 981, 984 (8th Cir. 2002).
123
Id.
124
Id. (citation omitted).
125
This is not to say that the transgender students could not
engage in conduct that would rise to the level of harassment.
It would be the same conduct required for cisgender students
to harass someone.
126
Br. for Appellees, 38–40.
28
 In Whitaker, a transgender boy sued the Kenosha
Unified School District for prohibiting him from using the
boys’ bathrooms and locker room. 127 He alleged that
Kenosha’s policy violated Title IX and denied him equal
protection. 128 The District Court agreed and the school district
appealed. 129 The Court of Appeals for the Seventh Circuit
affirmed, finding that Kenosha’s policy constituted sex-based
discrimination.

Specifically, Whitaker held that Kenosha’s policy
violated Title IX because it discriminated against transgender
people based on their failure to conform to sex stereotypes.130
“By definition, a transgender individual does not conform to
the sex-based stereotypes of the sex that he or she was assigned
at birth.” 131 Accordingly, Kenosha’s policy subjected
Whitaker, “as a transgender student, to different rules,
sanctions, and treatment than non-transgender students, in
violation of Title IX.” 132 The court also dismissed Kenosha’s
argument that gender-neutral bathroom alternatives were
sufficient because such a policy would itself violate the Act.133

Whitaker explained that the Supreme Court has adopted
an expansive view of “sex” under Title VII. 134 Rather than
limit the definition of sex to one’s anatomy, a plurality of the
Supreme Court held in Price Waterhouse that Title VII
“intended to strike at the entire spectrum of disparate treatment
of men and women resulting from sex stereotypes.” 135 The
Supreme Court reiterated Title VII’s broad view of “sex” in
Oncale, wherein Justice Scalia wrote that “statutory provisions
often go beyond the principal evil to cover reasonably
comparable evils, and it is ultimately the provisions of our laws
rather than the principal concern of our legislators by which we

127
Whitaker, 858 F.3d at 1042.
128
Id.
129
Id. at 1042–43.
130
Id. at 1048–49.
131
Id. at 1048.
132
Id. at 1049–50.
133
Id. at 1049–50
134
Id. at 1048.
135
Id. at 1047–48 (quoting Price Waterhouse v. Hopkins, 490
U.S. 228, 251 (1989) (plurality)).
29
are governed.” 136 Whitaker noted that, following Price
Waterhouse, many courts (including the Third Circuit) have
recognized a cause of action under Title VII when an employee
faces discrimination for failing to conform to sex
stereotypes. 137

The injunction that the appellants have requested here
would essentially have replicated the Kenosha policy. The
Boyertown Area School District can hardly be faulted for being
proactive in adopting a policy that avoids the issues that would
have otherwise arisen under Title IX. Contrary to the
appellants’ assertions, “sex” has not been narrowly limited to
a person’s anatomy under Title VII—nor by analogy is it so
limited under Title IX.

This conclusion is a natural extension of our decision in
Prowel v. Wise Business Forms, Inc, where we recognized that
a plaintiff can state a claim under Title VII for sexual
discrimination based on gender stereotyping. 138 While Prowel
did not involve a transgender person, we did consider whether
a man who did not adhere to male gender stereotypes could
state a claim for sex discrimination under Title VII. 139 Relying
on Price Waterhouse, we held that Title VII’s prohibition on
discrimination “because of sex” also prohibited discriminating
against someone who did not conform to gender stereotypes. 140

Title IX prohibits discrimination against transgender
students in school facilities just as Title VII prohibited
discrimination against Prowel in the workplace. Therefore a
court may not issue an injunction that would subject the

136
Id. at 1048 (quoting Oncale, 523 U.S. at 79).
137
Id. (citing Doe v. City of Belleville, 119 F.3d 563, 580–81
(7th Cir. 1997), vacated on other grounds, 523 U.S. 1001
(1998); Christiansen v. Omnicom Grp., Inc., 852 F.3d 195,
201 (2d Cir. 2017); Bibby v. Phila. Coca Cola Bottling Co.,
260 F.3d 257, 263–64 (3d Cir. 2001); Nichols v. Azteca Rest.
Enters., Inc., 256 F.3d 864, 874–75 (9th Cir. 2001); Higgins
v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 261 n.4 (1st
Cir. 1999)).
138
579 F.3d 285 (3d Cir. 2009).
139
Prowel, 579 F.3d at 287.
140
Id. at 290–92.
30
transgender students to different conditions than their
cisgender peers are subjected to.

We are not alone in reaching this conclusion. In addition
to the Seventh Circuit’s decision in Whitaker, the Courts of
Appeals for the Eleventh and Sixth Circuits have concluded
that discriminating against transgender individuals constitutes
sex discrimination. 141 Similarly, the First Circuit has relied on
Title VII in holding that a person may state a claim under the
Equal Credit Opportunity Act, which prohibits discrimination
“with respect to . . . sex[,]” if that person does not conform to
sex stereotypes. 142 The Ninth Circuit has also looked to Title
VII and held that a transgender female inmate who did not
conform to sex stereotypes could state a claim under the
Gender Motivated Violence Act. 143

We therefore hold that the District Court correctly
declined to issue an injunction based on the appellants’ Title
IX claim.

141
Glenn v. Brumby, 663 F.3d 1312, 1316–17 (11th Cir.
2011) (holding that a “person is defined as transgender
precisely because of the perception that his or her behavior
transgresses gender stereotypes . . . . Accordingly,
discrimination against a transgender individual because of her
gender-nonconformity is sex discrimination”); Smith v. City
of Salem, 378 F.3d 566, 573 (6th Cir. 2004) (holding that sex
discrimination under Title VII “encompasses both the
biological differences between men and women, and gender
discrimination, that is, discrimination based on a failure to
conform to stereotypical gender norms”).
142
Rosa v. Park West Bank & Tr. Co., 214 F.3d 213, 215–16
(1st Cir. 2000) (holding that the plaintiff, a birth-assigned
male whose “attire did not accord with his male gender,”
could state a claim if a banker did not give him a loan).
143
Schwenk v. Hartford, 204 F.3d 1187, 1200, 1202 (9th Cir.
2000) (“Congress intended proof of gender motivation under
the GMVA to proceed in the same way that proof of
discrimination on the basis of sex or race is shown under Title
VII . . . . ‘[S]ex’ under Title VII encompasses both sex—that
is, the biological difference between men and women—and
gender.”).
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 2. The District Court
correctly concluded that
the appellants’ state law
tort claim was unlikely
to succeed on the merits.

Finally, the appellants contend that the District Court
erred in denying the injunction as to their Pennsylvania-law
tort claim for intrusion upon seclusion. Pennsylvania has
adopted the Second Restatement of Torts’ definition of
intrusion upon seclusion:

One who intentionally intrudes,
physically or otherwise, upon the
solitude or seclusion of another or
his private affairs or concerns, is
subject to the other for invasion of
his privacy, if the intrusion would
be highly offensive to a reasonable
person. 144

In denying this claim, the District Court concluded that the
mere presence of a transgender individual in a bathroom or
locker room is not the type of conduct that would be highly
offensive to a reasonable person. As we have noted, students
in a locker room expect to see other students in varying stages
of undress, and they expect that other students will see them in
varying stages of undress. We will affirm the District Court’s
rejection of the appellants’ tort claim.

B. Irreparable Harm

In addition to finding that the appellants were unlikely
to succeed on the merits of their claims, the District Court
denied injunctive relief because they had not demonstrated that
the failure to issue an injunction would result in irreparable
harm. The District Court found that:

144
Tagouma v. Investigative Consultant Servs, Inc., 4 A.3d
170, 174 (Pa. Super. Ct. 2010) (quoting Restatement (Second)
of Torts § 652B (1965)).
32
 On a practical level . . . the privacy
protections that are in place at
BASH, which include the
bathroom stalls and shower stalls
in the locker rooms, the bathroom
stalls in the multi-user bathrooms,
the availability of a number of
single-user bathrooms (a few of
which will have lockers for storing
items), the [ability] of students to
store personal items in their locker
or leave those items with the gym
teacher, and the availability of the
team rooms in the locker rooms
(which would not involve students
passing through the common area
of the locker room), and the overall
willingness of the [appellees] to
work with the students and their
families to assure that the students
are comfortable at BASH,
mitigates against a finding of
irreparable harm. . . . The privacy
protections available to students in
2017-18 are more than suitable to
address any privacy concerns
relating to the presence of
transgender students in the locker
rooms and bathrooms at BASH. 145

We agree that the appellants did not demonstrate
irreparable harm would result from denying an injunction. The
School District has provided adequate privacy facilities for the
appellants to use during this litigation. Even if the appellants
could otherwise succeed on one or more of their claims (and,
as explained above, we do not suggest that they can), the
single-user facilities ensure that no appellant faces irreparable
harm in the meantime.

145
Doe v. Boyertown Area Sch. Dist., 276 F. Supp 3d. at 410.
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 III. CONCLUSION

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 District Court correctly concluded that the
appellants’ attempt to enjoin that policy based on an alleged
violation of their privacy rights and their rights under Title IX
and Pennsylvania tort law is not likely to succeed on the merits.
The District Court was also correct in deciding that denying the
injunction would not irreparably harm the appellants. For the
reasons set forth above and in the well-reasoned District Court
opinion, we will affirm the District Court’s denial of the
requested preliminary injunction.

34