CA3: Mere presence of transgender student in bathroom of gender identity violates no privacy right of ptfs

Plaintiffs objected to transgender students using school bathrooms in accord with their gender identity claiming a right of privacy. The district court denied an injunction and they appealed. The Third Circuit affirmed because there was no infringement on their privacy rights. The privacy cases plaintiffs cited were “wholly unhelpful to our analysis.” Doe v. Boyertown Area Sch. Dist., 2018 U.S. App. LEXIS 16323 (3d Cir. June 18, 2018):

This appeal requires us to decide whether the District Court correctly refused to enjoin the defendant School District from allowing transgender students to use bathrooms and locker rooms that are consistent with the students’ gender identities as opposed to the sex they were determined to have at birth. The plaintiffs—a group of high school students who identify as being the same sex they were determined to have at birth (cisgender)—believe the policy violated their constitutional rights of bodily privacy, as well as Title IX, and Pennsylvania tort law. As we shall explain, we conclude that, under the circumstances here, the presence of transgender students in the locker and restrooms is no more offensive to constitutional or Pennsylvania-law privacy interests than the presence of the other students who are not transgender. Nor does their presence infringe on the plaintiffs’ rights under Title IX.

In an exceedingly thorough, thoughtful, and well-reasoned opinion, the District Court denied the requested injunction based upon its conclusion that the plaintiffs had not shown that they are likely to succeed on the merits and because they had not shown that they will be irreparably harmed absent the injunction. Although we amplify the District Court’s reasoning because of the interest in this issue, we affirm substantially for the reasons set forth in the District Court’s opinion.
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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 and a criminal conviction for voyeurism after a person repeatedly looked at women in the stalls of public restrooms 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. 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.