In Doe v. Boyertown, (3d Cir., July 26, 2018), the U.S. 3d Circuit Court of Appeals in a revised panel decision refused to enjoin a Pennsylvania school district from allowing transgender students to use bathrooms and locker rooms consistent with their gender identities instead of  the sex they were assigned at birth. Te court rejected privacy, Title IX and state tort claims, saying in part: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. 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 restroom to avoid contact with transgender students can use the single-user bathrooms in the school.Yesterday following the issuance of the revised panel decision, the full court denied an en banc rehearing in the case, with 3 judges dissenting from the denial. (Full text of order and dissent.) The dissenters argued:The revised panel opinion rightly acknowledges that a school policy addressing transgender students’ use of bathrooms and locker rooms is a matter of high importance to Boyertown and its students. Given that public importance and the obvious sensitivity of the issues involved, one would have thought that the opinion would address only the facts at issue and then only to the extent necessary. But the panel went beyond what was necessary when it chose to address Boyertown’s tangential argument that the school district would have run afoul of Title IX had it implemented a policy that confined transgender students to use of bathrooms and locker rooms designated for their biological sex….The Morning Call reports on the decisions.



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