The Volokh Conspiracy
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In Friday's decision in Students and Parents for Privacy v. School Directors (N.D. Ill.), U.S. District Judge Jorge Alonso refused to dismiss plaintiffs' challenge to a school district's policy "allowing transgender students to use the bathrooms and locker rooms of their choice"; this means that, in his view, the plaintiffs' claims might be legally valid if the facts are as they allege.
[1.] The court allowed plaintiffs' Title IX sexual harassment claim to go forward; it didn't discuss the claim in detail, but here's the plaintiffs' argument from their opposition to the motion to dismiss:
Importantly, "[t]o be actionable as sexual harassment, the unwelcome treatment need not be based on unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature." Passananti v. Cook Cty., 689 F.3d 655, 664 (7th Cir. 2012) (internal citation omitted).
It is well-settled that opposite-sex intrusion into single-sex privacy facilities is sexually harassing. This Court held so in Norwood, 590 F. Supp. at 1417, saying that opposite-sex restroom attendants violate privacy and cause embarrassment and stress. Similarly, the Second Circuit affirmed a ruling that a company created a hostile environment by allowing males to clean the women's locker room while female employees were changing clothes. Lewis v. Triborough Bridge & Tunnel Auth., 31 F. App'x 746 (2d Cir. 2002).
The Washington Appeals Court held that an employer created a hostile environment partly because he entered the women's restroom while an employee was using the toilet. Schonauer v. DCR Entm't, Inc., 905 P.2d 392, 401 (Wash. Ct. App. 1995). Notably, he never observed her unclothed: she testified that she was securely in a stall. Id. at 396. Still, the employer's intrusion "intensified" "the hostile and offensive nature of that environment." Id. at 401. Similarly, a female entering the men's locker room "on five to ten occasions" created a hostile environment, resulting in sexual harassment. Washington v. White, 231 F. Supp. 2d 71, 80 (D.D.C. 2002).
The Norwood court noted that even if an opposite-sex maintenance worker were to knock before entering an in-use restroom, the users still might be stressed. 590 F. Supp. at 1422. In the instant case, Defendants refuse even that courtesy to the students. Am. Compl. 47-48 ¶ 227, ECF No. 197 (District refuses to warn about granting opposite sex access generally, or upon actual entry to a privacy facility.). Norwood also shows that the opposite-sex person's state of mind when entering a single-sex facility is irrelevant to the potential privacy violation—the maintenance workers would be in the facility to focus on their job. Thus, contra the District's argument, Dist. Memo 11, ECF No. 203, Plaintiffs need not demonstrate that either the District or the transgender students were motivated by animus when opposite-sex access was demanded and authorized.
[2.] The court also allowed plaintiffs' claim under the Illinois Religious Freedom Restoration Act to go forward; the Illinois RFRA generally creates a presumptive right to religious exemptions from generally applicable laws, and is patterned after the federal RFRA. The court did not decide whether the government could overcome the RFRA claim by showing that its policy was narrowly tailored to a compelling government interest; nor did the court discuss how the plaintiffs' claim might differ from a traditional RFRA claim, where people seek an exemption from a policy rather than trying to invalidate the policy:
The IRFRA defines "exercise of religion" as "an act or refusal to act that is substantially motivated by religious belief, whether or not the religious exercise is compulsory or central to a larger system of belief." 775 ILCS 35/5; cf. Korte v. Sebellius, 735 F.3d 654, 683 (7th Cir. 2013) ("[T]he substantial burden inquiry does not invite the court to determine the centrality of the religious practice to the adherent's faith; RFRA is explicit about that. And free-exercise doctrine makes it clear that the test for substantial burden does not ask whether the claimant has correctly interpreted his religious obligations."). It is enough that plaintiffs allege SPP Parents and SPP Students have sincere religious beliefs that they should not undress or use the bathroom in front of members of the opposite sex and that SPP Parents have a sincere religious belief that they should teach such modesty to their children.
Defendants also argue that SPP fails to allege adequately a substantial burden to their exercise of religion. For purposes of the IRFRA (like the federal Religious Freedom Restoration Act ("RFRA") before it), "the hallmark of a substantial burden on one's free exercise of religion is the presentation of a coercive choice of either abandoning one's religious convictions or complying with the government regulation." Diggs v. Snyder, 333 Ill.App.3d 189, 194-95 (5th Dist. 2002) (citing Wisconsin v. Yoder, 406 U.S. 205 (1972))…. Plaintiffs have alleged that District 211 maintains a policy allowing male students with female genders to use the girls' locker rooms and restrooms and female students with male genders to use the boys' locker rooms and restrooms. Thus, SPP Students are at risk of exposure to opposite-sex individuals while they are undressing or using the restroom, in violation of their sincerely-held religious beliefs….
Plaintiffs have [also] alleged that District 211 requires students to take physical education, which, often, requires students to change and/or shower between classes. In addition, plaintiffs have alleged that District 211 requires students to take swim class and that the swim locker rooms do not have private changing stalls or private showers.
Plaintiffs also allege that District 211 has conveyed to students that if a person objects to the [restroom and locker room use] policy, the person is bigoted and intolerant. That, combined with actual heckling by students, has dissuaded some SPP Students from asking to use a private locker room.
Furthermore, some SPP Parents have had their requests that their children be allowed to use a private locker room denied. Although the Court is not deciding today whether SPP can prevail on this claim, the Court concludes that SPP has included sufficient facts to provide notice to District 211 of a plausible claim under the IRFRA. Cf. Stanley v. Carrier Mills-Stonefront School Dist. No. 2, 459 F. Supp.2d 766, 773 (S.D. Ill. Sept. 21, 2006) (holding parent challenging school's "opposite sex day" stated free exercise claim and noting "peer pressure accompanied by tacit approval from the administration could certainly amount to coercion")….
[3.] The court also allowed plaintiffs' Free Exercise Clause to go forward, on the theory that, though the policy was facially religiously neutral,
[P]laintiffs have alleged that District 211 conveyed to students that anyone who objects to the … policy is a bigot or intolerant. That sounds like the sort of "subtle departure" from neutrality that might support a claim under the Free Exercise Clause.
[4.] And the court rejected plaintiffs' claim that they had a substantive due process right not to be observed by members of the opposite sex.
So far, the right not to be seen unclothed by the opposite sex [has not been recognized as constitutionally protected]. By bodily integrity, the Supreme Court was talking about physical bodily integrity, not visual bodily privacy. Rochin v. California, 342 U.S. 165, 172 (1952) (a "struggle to open [plaintiff's] mouth and remove what was there" as well as "the forcible extraction of his stomach's contents" constituted a violation of his substantive due process rights).
That is why Canedy v. Boardman, 16 F.3d 183 (7th Cir. 1994), does not help plaintiff. There, the plaintiff's allegation that he was strip searched "by female guards, and that no effort has been made to accommodate his privacy interests" stated a claim for violation of bodily integrity. Canedy, 16 F.3d at 188. That, though, was a "tactile" search, as the Seventh Circuit later described it when distinguishing Canedy from a visual search. Johnson v. Phelan, 69 F.3d 144, 145 (7th Cir. 1995) (Canedy "holds that a right of privacy limits the ability of wardens to subject men to body searches by women, or the reverse. Our case involves visual rather than tactile inspections[.]").
On a number of occasions, the Supreme Court and the Seventh Circuit have discussed bodily privacy in the context of rights under other amendments. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 657 (1995) ("For their own good and that of their classmates, public school children are routinely required to submit to various physical examinations, and to be vaccinated against various diseases…. Legitimate privacy expectations are even less with regard to student athletes. School sports are not for the bashful. They require 'suiting up' before each practice or event, and showering and changing afterwards. Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.") (holding that mandatory urine-testing for drugs did not violate the Fourth Amendment); Johnson, 69 F.3d at 148 & 150 ("How odd it would be to find in the eighth amendment a right not to be seen by the other sex. Physicians and nurses of one sex routinely examine the other. In exotic places such as California people regularly sit in saunas and hot tubs with unclothed strangers.") (Holding "[t]he fourth amendment does not protect privacy interests within prisons. Moving to other amendments does not change the outcome."); Id. at 152 ("The nudity taboo retains great strength in the United States…. Ours is a morally diverse populace and the nudity taboo is not of uniform strength across it. It is strongest among professing Christians, because of the historical antipathy of the Church to nudity … The taboo is particularly strong when the stranger belongs to the opposite sex.") (Posner, J., concurring); Cornfield v. Consolidated High School Dist. No. 230, 991 F.2d 1316, 1321 & 1323 (7th Cir. 1993) ("no one would seriously dispute that a nude search of a child is traumatic") (holding strip search of high school student was not unreasonable search); Schaill v. Tippecanoe Cty. School Corp., 864 F.2d 1309, 1312 & 1313 (7th Cir. 1988) ("There can be little doubt that a person engaging in the act of urination possesses a reasonable expectation of privacy as to that act, and as to the urine which is excreted. In our society, it is expected that urination be performed in private, that urine be disposed of in private and that the act, if mentioned at all, be described in euphemistic terms.") (holding that urine drug test constitutes search).
While these cases recognize some level of societal appreciation for adult privacy (though less so for students) in urination and in being naked in front of the opposite sex, none of these cases compels a conclusion that the right SPP asserts in this case is within the bounds of substantive due process; nor do they synthesize to support a substantive due process right. In any case, this Court takes seriously the cautions of the superior courts not to expand substantive due process. Glucksberg, 521 U.S. at 720 ("[W]e 'have always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended.'").
Although it would not shock the Court if the Seventh Circuit or Supreme Court one day recognizes the right to bodily privacy that the plaintiff seeks to enforce, this Court is not at liberty to expand the substantive rights protected by the Due Process Clause.
[Footnote moved: Indeed, the Third Circuit has recognized such a right. Doe v. Boyertown Area School Dist., 897 F.3d 518, 527 n. 53 (3rd Cir. 2018) ("If there were any doubt after Doe v. Luzerne County that the constitution recognizes a right to privacy in a person's unclothed or partially clothed body, we hold today that such a right exists."), petition for cert. filed Nov. 21, 2018. The Third Circuit went on to hold that a school district's policy of allowing transgender students access to opposite-sex bathrooms and locker rooms "'served a compelling state interest in not discriminating against transgender students' and was narrowly tailored to that interest."]
[5.] And a reminder about the procedural posture of the decision: "As lawyers understand, on a motion to dismiss, a Court accepts alleged facts as true. That does not mean the facts are true; that does not mean a plaintiff will ultimately be able to prove the facts. Many a plaintiff has failed to prove, at a subsequent stage of litigation, the facts alleged in a complaint."
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.