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

____________
2

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
3

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
4

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 wellreasoned 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.”3

A 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.
5

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 sexsegregated 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.
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-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)).
7

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.
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 2016–17 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. 
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. 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).
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 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.
11

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. DISCUSSION43

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).
12

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.”).
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 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 
14

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)).
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 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 
16

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 
17

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. 
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

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 
19

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.
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. 

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). 
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 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 birthdetermined 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 Center86 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.
22

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 searches89 and a 

criminal conviction for voyeurism after a person repeatedly 

looked at women in the stalls of public restrooms90 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. 
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 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 upon95— 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.
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 

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)). 
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 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).
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 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).
27

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.
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 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. 
29

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)).
30

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. 
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 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.”).
32

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)).
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, 

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.
34

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.