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 DIS TRICT; 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 St ates District Court for the Eastern District of Pennsylvania (No . 5

- 17

- cv

- 01249 ) District Judge: Honorable Edward G. Smith

_____________

Argued May 24 , 201 8

____________2 Before: McKEE

, SHWARTZ and NYGAARD

, Circuit Judges

.

(Opinion Filed: J u ne 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 No rth 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

Attorney s 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 601733 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

______________

M cKEE

, Circuit Judge

.

This appeal requires us to decide whether the D istrict

C ourt correctly refused to enjoin the defendant S chool D istrict from allowing transgender students to use bathrooms and

locker rooms that are consistent with the students’ gender identities as opposed to th e 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

constitution al 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 restroom s is no more offensive to

constitutional or Pennsylvania

- law privacy interests than the4 presence of the other students who are not transgender

. Nor does their presence infringe on the plaintiffs’ rights under Title

IX.

In an exceedingl y thorough, thoughtful

, and well

reasoned opinion, the D istrict C ourt denied the requested injunct ion based upon its conclusion that the plaintiffs had not

shown that the y 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 D istrict C ourt’s reasoning beca use of the interest in this issue , we affirm substantially for the reasons set forth in the D istrict C ourt’s opinion.

I

. BACKGROUND

A. The Setting.

Because such seemingly familiar terms as “sex” and “gender” can be misleading in the context of the iss ues 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, a nd the findings that the D istrict C ourt 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.” 3 A person’s gender identit y is their subjective, deep

- core sense of self as being a particular gender. 4 As suggested by the parenthetical in our opening paragraph, “c isgender” refers to a person who identifies with

1 App. 500.

2 App. 375.

3 App. 500.

4 App. 375.5 the sex that person was determined to have at birth. 5 The term

“tra nsgender” 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 w as determined to be male at birth. 8

Approximately 1.4 million adults

— or 0.6 percent of the adult population of the Unit ed States

— identif y as transgender. 9 Transgender individuals may e xperience “gender dysphoria,” which is c haracterized by significant and

substantial distress as a result of their birth

- determined sex being different from their gender identity. 10 Treatment f or children and adolescents who experience gender dysphoria

include s 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 typ ically 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 the ir birth

- determined se x

. 13 For transgender individuals, an important part of so cial 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. 2110.6 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

- in jurious 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, w hen transgender student s are addressed with gender appropriate pronouns and permitted to use facilities that conform to their gender identity, th ose students “r eflect 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 Sexua l 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 PT A, 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)).7 to attem pted 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 learn ing. 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
transg ender students there

. For reasons we discuss below, we do not view the level of stress that cisgender students may experience because of appellee s’ 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 I s Linked to Suicide

, NEWSWEEK (Dec. 16, 2016); Kris t en Clements

- Nolle, et al.

, Attempted Suicide

A mong T ran s gender P ersons : The Influence of Gender

- B ased

Discrimination and V ictimiz ation , 51 Jour n al 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 I ts Impact on Transgender People’s Lives , 19 J. of Pub. Mgmt. & Soc. Pol’y 65, 74

– 75 (201 3) )

. 23 App. 395.8 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

– 1 7 school year, Boyertown Area School District required students at Boyertown Area Senior High School (“BASH”) to use locker rooms and bathrooms

that a ligned with their birth

- determined sex. 27 BASH changed this policy in 2016 and for the first time permitted transgender

students to use rest rooms and locker rooms consistent with their gender identity. In ini ti ating 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 wit h 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 aligne d 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 stal ls. 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

– 13.9 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. Th e 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 o n encounters between some of the plaintiffs and transgender students in locke r 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 gen der 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 Titl e 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 allege d violation of a privacy interest. See Doe v. Boyertown Area Sch. Dist. , 276 F. Supp. 3d 324, 335

– 64 (E.D. Pa. 2017).10 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 re ferred to

, in

whi ch 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 a bsent 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 r uled that even if a cisgender plaintiff had been viewed by a transgender student, it would n ot have violated the cisgender student’s constitutional righ t 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 ap plied equally to all students

— cisgender male and c isgender 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
transgen d er 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 Pennsylv ania 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 offen sive to a reasonable person.

The D istrict C ourt 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.11 forced to give up a constitutional right to use segregated locker

rooms and bathrooms. It noted that the Schoo l District permitted the students to use the locker room facilities “without

limitation.” 41 A ny 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

th at BASH has made available

.

Having found that the plaintiffs had no likelihood of success on the merits and did not face irreparable harm, the

D istrict C ourt 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) tha t 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 a nd 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 announce d 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, 2 2 (2008)

.12 of a preliminary inj unction 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 l ower court’s conclusions of law but review its finding s 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

a ppellants’ constitutional right to privacy claim was unlikely to succeed on the

merits.

The appellants contend that the D istrict C ourt 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) erroneous ly 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 Distr ict’s policy was brought as a civil rights claim pursuant to 42 U.S.C. §

1983. S ection 1983 claims can succeed only if the underlying

act

— here, the alleged exposure of the appellants’ partially clothed bodies to transgende r 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.”)

.13 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 dec isions.” 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 C ircuits 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 . . .

loca ted 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 unclo thed or partially clothed body. ”); York v. Story

, 324 F. 2d 450, 45 5 (9th Cir. 1963) (“ We cannot conceive of a more basic subject of privacy than the naked body. The de sire

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

t hat 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 there14 The appellants advance two main arguments in support

of their contention that thei r 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 the m 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 g ive 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 absolut e. 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 government al infringement o n certain

fundamental interests unless that infringement is sufficiently

were any doubt after Doe v. Luzerne County that the

constitution r ecognizes 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.” (c itation omitted)).

55 Doe v. S EPTA , 72 F.3d at 1138

. 56 Doe v. Luzerne County , 660 F.3d at 178 ; Sterling v. Borough of Minersville , 232 F.3d 190, 19 5 (3d Cir. 2000) (“In examining right to privacy claims, we, therefore, balance a possible and responsible go vernment 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) )

.15 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 discriminati ng against transgender students ” and was na rrowly 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 discriminati on

. 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 p articularly high among ch ildren 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, 3 01

– 02 (1993)

. The D istrict

C ourt 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 Appellan ts, 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 113 9

– 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 Are a Sch. Dist. , 276 F. Supp. 3d at 390.

60 Whitaker by W hitaker 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 in16 similarly found that the government has a compelling interest in protecting and caring for children in various contexts. 63

M istreatment 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

can not be overstated

— indeed, it can be life threatening. This record clearly supports the District Court’s conclusion that the

School District ha d 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 f rom 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 mor e enlighte ning and interesting [because] the students have the greatest possible variety of backgrounds.” 65

S tudents 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

Serv s

. , 103 F.3d 1123, 1125 (3d Cir. 1997) (noting that the government has a compellin g interest in the “p rotection 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 , NEA17 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, t he School District’s policy not only serves the compellin g 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 b iological 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, thos e cisgender

students who fe el 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 Ori entation 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

aft er 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.18 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

adva nce a compelling st ate 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 Distric t Court correctly held that

the School D istrict’s policy was n arrowly tailored. The appellant s 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 trans gender 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 polic y 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

uncomforta ble 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

a ppellants seemingly admit that these accommodations “resolve all privacy concerns.” 74 Yet they insist that the policy

should be changed to require that tr ansgender studen ts use individual bathrooms if they do not wish to use the communal facilities that align with their birth

- determined sex

. N ot only

would f orcing transgender students to use single

- user facilities or those that correspond to their birth sex not serve the

c ompelling 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 33 3 (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 Pediatric s et al.

, 17

– 18. (“[F]orcing transgender students to use separate19 for the Seventh Circuit has recognized, a school district’s policy that required a transgender student to use single

- user facilit ies “actually invited more scrutiny and attention from his peers.” 76 Adopting the appellants’ position would very publicly brand a ll transgender students with a scarlet “T

, ” and they should not have to endure that as the price of attending their public school.

N othing in the record suggest s that cisgender students

who voluntarily elect to use single

- user facilities to avoid transgender students face the same extraordinary co nsequences as transgender students would if they were forced to use them

. As we explain more fully below, requiring transgender

students to use single use r or birth

- sex

- aligned facilities is its

own form of discrimination.

I t is therefore clear that t he D istrict Court was correct in concluding th at the appellant s are unlikely to succeed in establishing a violation of their right to privacy based on a transgender studen t potentially viewing them in a state of

undress in a locker room or restroom. T he challe nged policy is narrowly tailored to serve a compelling governmental interest

. There is no constitutional violation.

The appellant s also urge us to recognize constitutional privacy protection s for alleged violations that result ed 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 pr otect 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 appellant s’ privacy rights are violated if they are forced to atten d 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 Appellant s , 18 (emphas is added).

78 Id. at 27.20 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.

W e reject the premise of this argument because BASH’s policy does not force any cisgender student to disrobe i n 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 a s single

- user facilities so that any student who is uneasy undressing or using a restroom in the presence

of other s can take steps to avoid contact. BASH’s policy does not compel a privacy violation for any student.

In any event, w e 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 appell ants 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 spac es where it is not only common to encounter others in various stages of undress

, i t 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 appellant s’ asserted privacy interest requires protection from

the risk of encountering students in a bathroom or locker room

who m appellants identify as being members of the opposite

sex. As the Seventh Cir cuit noted in Whit aker “[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).21 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 the ir bodily

functions.” 81

None of the cases cited by the appellant s 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]

s eparate 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. A lthough it acknowledged that privacy

concerns may justify separate facilities for men and women in certain circumstances, 85 it did not hold that the C onstitution 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 s o me 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 appellant s’ 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 B lack 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 Faulk n er , 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 d ifferences.”)

. 86 612 F.3d 908, 913 (7th Cir. 2010)

. 87 Chaney , 612 F.3d at 910

– 12

.22 from medical care based on sex, noting that just as “the law

tolerates same

- sex restrooms or same

- sex dressing rooms . . .

to accommodat e 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

C onstitution tolerates single

- sex accommodations. It did not

hold that the constitution demands it.

Eq ually unpersuasive is the appellant s’ 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 not h ing inappropriate a bout 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. A ppellant s 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, t he 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. C onstitutional 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 (quo ting Nunez v.

Pachman , 578 F.3d 228, 232 (3d Cir. 2009) ).

92 Br. for Appellants, 10

– 12.23 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 transgend er students using facilities aligned with their gender identities after seeking and receiving approval

from trained school counselors and administrators implicates different privacy concerns t han , for example, a case involving an adult stranger sneaking in to a locker room to watch a fourteen year

- old girl shower. The latter scenario

— taken from

a case the appellant s 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 d id not discriminate on the basis of sex,

and because the appellant s 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 restro oms 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, d iscrimination 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 comp arable 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

.24 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

enviro nment 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 effectivel y 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 ha rassment” 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 harass ment must prove the

harassment was “severe or pervasive” or “severe and pervasive.” Castleberry v. STI Gr p. , 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 disjun ctive 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 . . . .”)

, wi th 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

vict im’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 Serv s. , 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))

.25 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 instr uctive. 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 t hat 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 disc rimination 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 se x 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 appellant s 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 discriminat ion 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 Sy s

. , Inc. , 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)).

109 Id. at 81 (internal alterations, emphasis, and quotation

marks omitted ).26 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 ro oms 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 appellant s had not met their burden of establishing that the mere presence of trans gender students in bathrooms and locker

rooms co nstitutes 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 appellant s again cite inapposite cases that involve egregious

harassment. That is not surprising since we have found no authority that supports the appellant s ’ clai ms. Two cases that the appellant s 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).27 Lewis v. Triborough Bridge and Tunnel Auth ority 113 and

Schonauer v. DCR Entertainmen t 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 appellant s face here is patently fr ivolous

.

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 co nstitute 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

264.28 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 tra nsgender person in a restroom did not create an environment that wa s “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 emp hasized, the appellant s’ real objection is to the presence of transgender students, not to any “environment”

the ir presence creates. Indeed, the allegations here include an

assertion that a cisgender student was harassed merely by a transgender student was hing that student’s own hands in a bathroom or changing in a locker room. That is not the type of conduct that supports a Tit le IX hostile environment claim

. 125 The District Court recognized this and correctly ruled that this claim was unlikely to succeed.

T he 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 ne ed not decide that very differ ent 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 appellant s 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 Appellee s , 38

– 40.29 In Whitaker

, a transgender boy sued the Kenosha Unified School District for prohibiting him from using the boys’ bathroom s and locker room. 127 He alleged that Kenosha’s policy violated Title IX and denied him e qual protection

. 128 The District C ourt agreed and the school district appealed. 129 T he 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 w as 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 ge nder

- neutral bathroom alter natives 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 ana tomy

, 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 W hitaker , 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 10 49

– 50

134 Id. at 10 48

. 135 Id. at 1047

– 48 (quoting Price Waterhouse v. Hopkins , 490 U.S. 228, 251 (1989) (plurality)).30 ar e governed.” 136 Whitaker noted that, f ollowing 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

T he injunction that the appellant s 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 a risen under Title IX. Contrary to the appellant s ’ assertions, “sex” has not been narrowly limited to a person’s anatomy under Title VII

— nor by analogy is it so

limited under Title I X

.

T his conclusion is a natural extension of our decision in

Prowel v. W ise 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

– 92.31 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 C ircuits h ave 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 discr imination “with respect to . . . sex[,]” if that person do es 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

Gen der Motivated Violence Act. 143

We therefore hold that the District Court correctly

declined to issue an in junction based on the appellant s’ 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 . . .

. A ccordingly,

discrim ination 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 be tween 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

ma le 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 encompass es both sex

— that is, the biological difference between men and women

— and gender.”).32 2. The District Court correctly concluded that the appellants’ state law tort claim was unlikely

to su cceed 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

in trusion 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 appellant s’ tort cla im.

B. Irreparable Harm

In addition to finding that the appellant s 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 resul t in irreparable

harm. The District Court found that:

144 Tagouma v. Investigative Consultant Serv s, Inc ., 4 A.3d 170, 174 (Pa. Super. Ct. 2010) (quoting Restatement (Second) of Torts § 652B (1965)).33 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,

t he 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 i n 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, mitig ates 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 appellant s did not demonstrate irreparable harm would result from denying an injunction . The School District has provided adequate priva cy facilities for the appellant s to use during this litigation. Even if the appellant s could otherwise succeed on one or more of their claims (and, as explain ed above, we do not suggest that t hey 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 410.34 III. CONCLUSION

The Boyertown Area School District ha s adopted a very thoughtful and carefully tailored pol icy in an attempt to address

some very rea l issues while faithfully discharging its obligation

to maintain a safe and respectful environment in which

everyone c an both learn and thrive.

The District Court correct ly concluded that the appellant s ’ 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 appellant s. For the

reasons set forth above and in the wel l

- reasoned District Court opinion, we will affirm the District Court’s denial of the requested preliminary injunction.