Brian H. Callaway, left, and Justin G. Weber, right, of Pepper Hamilton.

Editor’s note: This is the second in a three-part series.

Private schools across the country continue to grapple with how to properly educate all students in light of still-developing issues regarding transgender rights, as well as continuing legal uncertainty about those rights. Part I of this article focused on Title IX of the Education Amendments Act of 1972, which remains a landmark federal law regarding education.  Although private schools that do not receive federal funding are not subject to Title IX, other federal laws that prohibit discrimination based on “sex” may apply and can provide insight on evolving interpretations. In this Part II, we examine those other laws. Part III of the article will address the considerations schools should make when establishing, amending, or reviewing policies and best practices relevant to transgender students. Decisions under other federal statutes can be found on either side of the issue, but, if the arc of the law is bending, it bends toward the broader definition of “sex” and recognizing transgender rights.

Fair Housing Act

A federal judge in Colorado ruled that the Fair Housing Act (FHA) can encompass discrimination against transgender people in the housing context, see Smith v. Avanti, 249 F. Supp. 3d 1194, 1197-99 (D. Colo. 2017). The plaintiffs, a transgender woman and her family, sought rental housing but were denied. The court found that this was a violation of the FHA based on a “sex stereotyping” theory in that the defendant relied on stereotypes “of to or with whom a woman (or man) should be attracted, should marry, or should have a family.” The plaintiffs also argued that the defendant discriminated based on sexual orientation or gender identity, but the court declined to rule on those issues as they were not actually pleaded in the complaint. While Avanti did not involve a school, because the FHA may apply to schools that provide certain types of housing, it may capture schools that are not subject to Title IX.

Title VII

Title VII, the federal statute targeting discrimination in employment, has unsurprisingly emerged as a legal battleground for transgender rights. This year, in a case involving a transgender woman who was fired from the funeral home where she worked, the U.S. Court of Appeals for the Sixth Circuit has held that such treatment of employees, “because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII,” as in Equal Employment Opportunity Commission v. R.G., No. 16-2424, 2018 U.S. App. LEXIS 5720, at *91 (6th Cir. Mar. 7, 2018). However, transgender employees have been unsuccessful elsewhere. See, e.g., Etsitty v. Utah Transit Authority, 502 F.3d 1215, 1218 (10th Cir. 2007) (affirming summary judgment for an employer sued after terminating a transgender woman after the trial court determined that “the prohibition against sex stereotyping recognized by some courts should not be applied to transsexuals”). Circuit splits on the issue of transgender rights in the employment context may ultimately prompt the U.S. Supreme Court into providing more guidance on those rights. In the meantime, schools should be aware of the trend of decisions in the Title VII context.

The ADA

The Americans with Disabilities Act (ADA) may also implicate transgender issues, even despite a statutory exclusion, see Blatt v. Cabela’s Retail, No. CIV. A. 14-4822, 2017 U.S. Dist. LEXIS 75665, 2017 WL 2178123, at *4 (E.D. Pa. May 18, 2017) (holding that the “gender identity disorder” exclusion in the ADA does not encompass gender dysphoria because that condition goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other disabling impairments). This matter settled shortly after the district court decision, and will not be subject to appeal. Thus, at least according to the holding of Blatt, a transgender student who claimed discrimination because of gender dysphoria (but not solely based on gender identity) could assert a claim under the ADA.

State and Local Laws

Some states provide specific protections that address gender identity, with a minority of states specifically addressing gender identity discrimination. Other states have bills pending that restrict bathroom access to an individual’s biological sex.

Pennsylvania has no current specific statewide protections for transgender individuals. However, by executive order, agencies under the governor’s jurisdiction are prohibited from discriminating against any employee or applicant for employment on the basis of gender expression or identity, see Commonwealth of Pennsylvania, Governor’s Office, executive order 2016-04. In addition, contractors or grantees of the commonwealth are prohibited by executive order from discrimination in the hiring and treatment of their employees.

Cities and municipalities may also provide protections. For example, State College, Pennsylvania, prohibits discrimination on the basis of gender or gender identity in employment. Other municipal ordinances are not specific with respect to gender identity and simply apply to “sex,” creating the same interpretation questions that exist under federal civil rights laws.

Nontransgender Students and Privacy

When schools permit transgender students to use facilities consistent with gender identity, not all parties have been satisfied. Students and parents have challenged these policies on constitutional grounds, albeit so far unsuccessfully, alleging that they violate the privacy rights of nontransgender students by requiring them to use facilities with members of the opposite biological sex.

Although courts have recognized limited privacy rights, they generally have not found that allowing transgender students to use facilities consistent with the student’s gender identity infringes on nontransgender students’ privacy rights. For instance, in an unusual ruling from the bench, the Third Circuit recently affirmed the denial of such an argument raised by nontransgender students who were seeking to enjoin enforcement of a school district’s policy allowing transgender students to use restrooms corresponding with their gender. SeeDoe v. Boyertown Area School District, No. 17-3113 (3d Cir. May 24, 2018). While it is likely that any such claims against a private or independent school would be unsuccessful, schools can mitigate associated risks further by establishing policies in a student handbook.

Privacy claims involve a fact-intensive and context-specific analysis. In Students & Parents for Privacy v. U.S. Department of Education, No. 16-cv-4945, 2016 U.S. Dist. LEXIS 150011 (N.D. Ill. Oct. 18, 2016), the court framed the issue as whether there is a “constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs.” In finding no privacy violation, the court noted that the school’s policies allowed students to use private stalls and alternative facilities if the private stall did not ensure the student’s privacy needs. In Doe v. Boyertown Area School District, a court in the Eastern District of Pennsylvania has followed this approach. See 2017 U.S. Dist. LEXIS 137317 (E.D. Pa. Aug. 25, 2017) (denying preliminary injunction and holding that allowing transgender students to use facilities consistent with their gender identity did not involve forced exposure and the school provided numerous privacy protections). In its opinion explaining its earlier affirmance of that decision, the U.S. Court of Appeals for the Third Circuit panel stressed the importance of allowing transgender students to use facilities that reflect their gender identities. “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 to attempted suicide. The result is that those students avoid going to the bathroom by fasting, dehydrating, or otherwise forcing themselves to not use the restroom throughout the day. This behavior can lead to medical problems and decreases in academic learning,” No. 17-3113 (3d Cir. June 18, 2018). While other students may be uncomfortable with transgender students using restrooms matching their gender identity, the panel wrote, that was not “comparable to the plight of transgender students who are not allowed to use facilities consistent with their gender identity.”

The courts in both Students and Doe held that no constitutional rights were violated, primarily based on the factual nature of the interactions and the way the right was framed. Because privacy concerns are fact-specific inquiries, different factual situations may create different results. For example, strip searches of students by members of the opposite biological sex have been prohibited, see Cornfield v. Consolidated High School District, No. 230, 991 F.2d 1316 (7th Cir. 1993). If a student is strip-searched by a transgender teacher of the opposite biological sex, it would present a different factual scenario, with a potentially different outcome.

The next part of this series, Part III, will outline what schools should consider as they make, amend, or review policies and best practices relevant to transgender students.

Justin G. Weber is a partner with Pepper Hamilton and attorney-in-charge of the Harrisburg office. He is a member of the firm’s trial and dispute resolution practice, a seasoned and trial-ready team of advocates who help clients analyze and solve their most emergent and complex problems through negotiation, arbitration and litigation.

Brian H. Callaway is an associate with the firm, resident in the Philadelphia office. Callaway concentrates his practice on commercial litigation, including media law, insurance bad faith litigation and complex contract disputes.