On May 28, the United States Supreme Court declined to hear a challenge to a school district’s policy that permitted transgender students to use bathroom and locker room facilities consistent with their preferred gender identity. As a result, a July 2018 ruling by a lower court upholding the board’s policy remains valid guidance for New Jersey school districts regarding transgender students’ access to these facilities.

Before the high court was an appeal of a 2018 decision by the United States District Court of Appeals for the Third Circuit in Doe v. Boyertown Area School District. The Third Circuit is the federal appeals court sitting directly below the U.S. Supreme Court. It establishes legal precedent for New Jersey, Pennsylvania, Delaware, and the Virgin Islands.

In the case, the school board in Boyertown, Pa. adopted a policy that allowed transgender students, with approval on a case-by-case basis by appropriate school staff, to use bathrooms and locker rooms consistent with a student’s gender identity. At the same time, the district provided single-user facilities that were available to all students.

Four “cisgender” students—who identified as being the same sex they were determined to have at birth—challenged the district’s policy, alleging violations of their constitutional right to privacy, Title IX of the Education Act of 1972, and Pennsylvania tort law. However, the Third Circuit rejected the cisgender students’ claims.

First, the Third Circuit found that the constitutional right to privacy must be weighed against “important competing governmental interests.” Here, the district had a compelling state interest in protecting transgender students from discrimination. Without such protections, the court found, transgender students are at risk for harm to their wellbeing. Moreover, the court held that “requiring transgender students to use single user or birth-sex-aligned facilities is its own form of discrimination.”

Further, the court took note that single-user facilities were available to all students, such that a cisgender student who did not feel comfortable changing in front of other students could use the single-user facilities. Additionally, the court found, the students were arguing for a right to privacy in a space that was, practically speaking, not that private.

Regarding the students’ other claims, the court held that the students did not establish a Title IX claim because the policy did not discriminate on the basis of sex and they failed to establish a hostile environment harassment claim. Their tort claims under state law were also rejected by the court.

Because the U.S. Supreme Court has declined to hear the students’ appeal of the Third Circuit decision, New Jersey districts can rely on the Third Circuit’s decision for guidance when revising their own policies. The court’s decision in the Boyertown case, moreover, is the most current and on point federal guidance for New Jersey districts since the rollback of protections for transgender students expressed in a February 2017 Dear Colleague Letter from the U.S. Department of Education.

In view of the most recent developments in the Boyertown case, school districts may wish to review the September 2018 guidance from the New Jersey Department of Education regarding the rights of transgender students, with some provisions closely mirroring the Third Circuit’s decision in Boyertown. Additionally, boards are encouraged to become familiar with the Dear Colleague Letter in order to respond to public misperceptions about the interplay between the state and federal guidance documents. The decision by the Supreme Court to not hear the Boyertown appeal affirms the New Jersey guidance.

School districts considering revisions to their policies regarding student usage of bathroom and locker room facilities are encouraged to discuss these issues with their board attorney. For additional information, please contact the NJSBA Legal and Labor Relations Department at (609) 278-5254.

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