Joel Doe v. Boyertown Area School District, 893 F.3d 179

Background

Boyertown Area Senior High School (BASH) adopted a 2016 policy allowing transgender students, on a case-by-case basis after counselor review, to use restrooms and locker rooms consistent with their gender identity; single-user restrooms and private spaces remained available to all students.
Four cisgender students (pseudonymous) sued under 42 U.S.C. § 1983 (constitutional privacy), Title IX, and Pennsylvania tort law (intrusion upon seclusion), seeking a preliminary injunction to bar the policy.
Plaintiffs claimed the policy violated a constitutional privacy right in not being exposed to members of the opposite birth sex while partially clothed, constituted sex discrimination/hostile-environment harassment under Title IX, and amounted to highly offensive intrusion under state tort law.
The district court denied the preliminary injunction, finding plaintiffs unlikely to succeed on the merits and not shown to face irreparable harm; it emphasized the school’s mitigating measures (stalls, single-user rooms, private team rooms) and case-by-case approvals.
The Third Circuit affirmed, applying strict-scrutiny review to the privacy claim, recognizing a compelling state interest in protecting transgender students and finding the policy narrowly tailored; it also held plaintiffs’ Title IX and tort claims unlikely to succeed and found no irreparable harm.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether policy violates constitutional right to privacy by exposing cisgender students to opposite‑sex viewers while partially clothed	Policy permits viewing by members of opposite birth sex; privacy right vitiated	Policy serves compelling interest in preventing discrimination against transgender students and is narrowly tailored; single‑user options available	Rejected; court found compelling interest and narrow tailoring; no constitutional violation
Whether policy violates Title IX (sex discrimination or hostile environment)	Presence of transgender students creates sex‑based discrimination/harassment	Policy is sex‑neutral, treats all students equally; barring transgender students could itself constitute sex discrimination	Rejected; no disparate treatment shown and alleged conduct not severe or pervasive enough for hostile‑environment relief
Whether state tort intrusion upon seclusion committed by transgender students’ presence	Mere presence in shared facilities is highly offensive to reasonable person	Locker rooms/restrooms are not fully private; no evidence of intrusive viewing; single‑user options provided	Rejected; mere presence not highly offensive under Pennsylvania law
Whether plaintiffs established irreparable harm warranting preliminary injunction	Avoiding exposure and altered restroom use cause ongoing irreparable privacy injury	Adequate alternative privacy measures exist (stalls, single‑user rooms, team rooms); harms are not irreparable	Rejected; plaintiffs failed to show irreparable harm

Key Cases Cited

Doe v. SEPTA, 72 F.3d 1133 (3d Cir.) (recognizes privacy interest in partially clothed body)
Doe v. Luzerne County, 660 F.3d 169 (3d Cir.) (privacy‑right analysis is fact‑intensive; recognized reasonable expectation of privacy)
Whitaker by Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034 (7th Cir. 2017) (holding school policy excluding transgender student from facilities violated Title IX as sex‑stereotyping discrimination)
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (Title VII prohibits discrimination based on sex stereotypes)
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (Title VII harassment requires discrimination because of sex)
Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir.) (recognizing sex‑stereotyping theory under Title VII)
DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir.) (standard for Title IX hostile‑environment claim)
Cruzan v. Special School Dist. No. 1, 294 F.3d 981 (8th Cir.) (transgender presence alone in restroom did not create hostile environment)