While the Trump administration’s attacks on transgender people have continued apace, federal courts are ruling in favor of transgender rights at an unprecedented rate. This week, following a string of victories for trans plaintiffs, the 3rd U.S. Circuit Court of Appeals affirmed the constitutionality of a Pennsylvania school district policy permitting transgender students to use the bathrooms and locker rooms corresponding to the students’ gender identities. The decision in Doe v. Boyertown Area School District is a significant victory for transgender rights in several respects.
First, the court easily concluded that permitting transgender students to use bathrooms and locker rooms consistent with their gender identities did not in any way threaten the privacy of cisgender students using those spaces. The court noted that mere discomfort about being in the presence of transgender students does not implicate a constitutional privacy interest. And, in any event, the school district’s policy did not force any students to expose their body to anyone else, because single-user bathroom and showering spaces were available to all students—including the plaintiffs who objected to the presence of transgender students.
Moreover, the court observed that to the extent there was any privacy violation, the district’s policy of inclusion was sufficiently compelling to outweigh that privacy violation because it protected transgender students from being marginalized and excluded. The balance of interests tilted decisively in favor of protecting transgender people and allowing them to exist in public space. Excluding transgender students from bathrooms that correspond to their gender identities would “publicly brand all transgender students with a scarlet ‘T,’ ” inviting scrutiny and possibly scorn. (To be clear, transgender people have everything to be proud of, but they should not be forced into situations where they feel conspicuous or excluded). The court went further, noting that the policy, in fact, benefited all students by promoting a spirit of inclusivity, acceptance, and tolerance.
Boyertown is only the latest in a line of cases recognizing the humanity of transgender people. Recently, two federal courts have confirmed that laws restricting transgender people’s ability to change their gender markers on identification documents violate the U.S. Constitution. In Arroyo Gonzales v. Rosselló, a federal district court concluded that Puerto Rico’s practice of not permitting individuals to change the gender markers on their birth certificates violated people’s constitutional right to privacy and exposed them “to a substantial risk of stigma, discrimination, intimidation, violence, and danger.” Similarly, in F.V. v. Barron, a federal district court held that Idaho’s prohibition on changing the sex listed on a birth certificate violated the Equal Protection Clause, concluding that laws that target transgender people are subject to heightened scrutiny as a form of sex discrimination. It also found that transgender status itself is a quasi-suspect classification triggering heightened scrutiny.
Multiple federal courts have also concluded that the Trump administration’s ban on transgender service members likely runs afoul of the Constitution because it was motivated by animus, not military readiness. And even after the Trump administration purportedly revised the ban in March, implementation of the ban continues to be enjoined (this is because the administration’s “revised” ban still bars transgender people from enlisting and serving). For example, in the case of Karnoski v. Trump, a federal court in Washington state held that the ban would continue to be enjoined. The court further concluded that transgender status was a suspect classification, meaning that laws targeting transgender people, such as the military ban, were subject to the highest level of constitutional scrutiny—strict.
And despite the fact that the Trump administration has withdrawn Obama-era guidance interpreting Title IX to protect transgender students, multiple federal courts have concluded that Title IX—by its own terms—requires schools to permit transgender students access to sex-segregated facilities that align with the students’ gender identity. For example, in Whitaker v. Kenosha Unified School District, the 7th U.S. Circuit Court of Appeals concluded that excluding a transgender boy from the boys’ restroom likely violated Title IX’s prohibition on sex discrimination (as well as the Equal Protection Clause). And in the Gavin Grimm case, which the Supreme Court sent back to lower courts after the Trump administration withdrew the guidance, the federal district court recently ruled that Title IX’s prohibition on sex discrimination includes discrimination on the basis of transgender status.
All told, these decisions confirm that Trump is not the sole decider of transgender people’s rights. They point toward a growing judicial consensus that both statutory civil rights laws and the Constitution recognize the sanctity of transgender lives.