Can a School District’s Policy to Allow Transgender Students to Access Bathrooms Consistent With Their Gender Identity Be a Basis for a Sexual Harassment Claim?

The Transgender Student

Paul is a 17-year-old junior high school student in Louisville, Kentucky whose sex was female at birth, but who, since at least the age of five, has had a lasting, persistent male gender identity. Because Paul’s birth-determined sex is different from his gender identity, Paul experienced relentless bullying in school due to others’ unwillingness to accept him as a boy, causing him significant emotional distress as a child. Paul became extreme anxious and had frequent suicidal thoughts because of the social rejection that he experienced.   With the support of his parents, however, Paul underwent psychological therapy, which included social gender transitioning counseling, as well as physical interventions such as hormone therapy, in order to transition and present himself as male. Paul began adopting hairstyles and clothing to suit his gender identity and using sex-segregated spaces that corresponded to his gender-identity rather than his birth-determined sex. By the time Paul reached high school, his peers, for the most part, perceived him as male, though some did not. Several of his peers expressed that Paul made them feel uncomfortable.   When Paul tried out for and earned a starting position on the school’s male baseball team, most of his teammates, though not all, were accepting. This predominant, even if incomplete, acceptance, helped alleviate the anxiety and depression that Paul had experienced for years.   Paul had come to the realization that being accepted by everyone was simply unrealistic.

The School Policy

Since a year before Paul began high school, his high school has adopted a policy that allows students to access the bathroom and locker room consistent with their gender identity, rather than compelling them to use the bathroom or locker room that aligns with their birthsex. The school’s policy does not require that the student manifest behaviors or characteristics of the gender with which the student identifies in order to access a particular bathroom or locker room, but simply leaves it up to the student as to which one to use.

The Student Distressed by the School Policy

Tristan is an 18-year-old male senior at Paul’s high school, and one of the students on the baseball team who is visibly uncomfortable around Paul.   Tristan’s parents, and the pastor at Tristan’s church, preach it is morally wrong for a person to take hormones to alter body chemistry, particularly for purposes of conforming to a gender identity different from one’s birthsex. Tristan does everything possible to avoid any bathroom or locker room encounters with Paul, including by reducing his water intake, eating less at lunch, and using sweaty gym clothes under his regular school clothes so that he does not have to disrobe in front of Paul.   Tristan’s performance, both academically and on the baseball team, has declined since Paul joined the baseball team.

Tristan’s parents are infuriated that Paul is allowed to use the male bathrooms at the high school, and believe the school’s policy is violating Tristan’s privacy, and subjecting Tristan to unnecessary and unacceptable levels of distress. Tristan’s parents complained to the principal, the school district superintendent, and other school officials about the school policy, about Paul, and the resulting distress to Tristan. The school officials responded that Tristan needed to get past his feelings of discomfort and accept or ignore Paul, and that their only alternative would be to implement a policy that would make Paul feel equally, if not more, uncomfortable, and subject Paul to distress that was much graver than that experienced by Tristan.

The Lawsuit

Tristan and his parents, among other cisgender high school students and their parents, brought a lawsuit against the school district and school officials alleging, among other claims, that the school district’s policy of allowing transgender students to access bathrooms and locker rooms consistent with their gender identity constituted sexual harassment under Title IX of the Education Amendments of 1972. Title IX provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under an education program or activity receiving Federal financial assistance”. The U.S. Supreme Court has found a private right of action for sexual harassment under Title IX.

A school district may be liable for sexual harassment if the district was deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.  

Tristan and his parents seek emotional distress damages, and also seek an injunction to permanently eliminate the school’s policy and require that students access the bathrooms and locker rooms that align with their birthsex.

The Current State of the Law

            Two recent similar federal lawsuits, one filed in Pennsylvania, and the other in Illinois, sought relief under Title IX based on a school district’s policy to allow transgender students to access bathrooms and locker rooms consistent with the student’s gender identity rather than their birthsex. In the Pennsylvania case, Students and Parents for Privacy v. Sch. Dirs. of Twp. High Sch. Dist. 211, 377 F.Supp.3d 891 (N.D. Ill. 2019) , both the U.S. District Court and the Third Circuit Court of Appeals denied injunctive relief, and held that the Title IX claim was unlikely to succeed on the merits, reasoning that Title IX claims must be based on disparate treatment based on sex, while the School District’s policy was sex-neutral. Since the policy allows all students, both male and female, to use bathrooms and locker rooms that align with their gender identity, the policy does not discriminate based on sex, and therefore does not offend Title IX.

In Doe v. Boyertown Area Sch. Dist., 897 F.3d 518 (3rd Cir. 2018) , the U.S. District Court in the Illinois case reached a different conclusion.   That court concluded that the students pled a plausible sexual harassment claim against the school district under Title IX, although it did not reach the ultimate merits of that claim.

These cases suggest it is still an open question whether students can successfully sue a school district for sexual harassment under Title IX based upon a bathroom and locker room policy that allows transgender students to access the facilities that align with their gender identity.   The Pennsylvania case also suggests that a transgender student might have a viable claim under Title IX for a school district’s bathroom and locker room policy that requires all students to use the facilities that align with their birthsex, irrespective of the student’s gender identity, which could put school districts in the impossible position of being vulnerable to lawsuits regardless of what bathroom and locker room policy they adopt.