               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT



                              No. 17-3113


            JOEL DOE, A Minor, by and through his Guardians
          John Doe and Jane Doe; MACY ROE; MARY SMITH;
            JACK JONES, A minor, by and through his Parents
        John Jones and Jane Jones, *CHLOE JOHNSON, A minor
    by and through her Parent Jane Johnson; *JAMES JONES, A Minor
           by and through his Parents John Jones and Jane Jones,
                                                      Appellants

                                   v.

            BOYERTOWN AREA SCHOOL DISTRICT;
       DR. BRETT COOPER, In his official capacity as Principal;
  DR. E. WAYNE FOLEY, In his official capacity as Assistant Principal;
              DAVID KREM, Acting Superintendent

PENNSYLVANIA YOUTH CONGRESS FOUNDATION (Intervenor in D.C.)

                 *(Pursuant to Court Order dated 4/6/18)




                     (E.D. Pa. No. 5-17-cv-01249)



                  SUR PETITION FOR REHEARING
Present: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN,
HARDIMAN, GREENAWAY, JR., VANASKIE, SHWARTZ, RESTREPO, BIBAS,
and NYGAARD*, Circuit Judges


         The petition for panel rehearing and rehearing en banc filed by appellants in the

above-entitled case has been submitted to the judges who participated in the decision of

this Court and to all the other available circuit judges of the circuit in regular active

service. The judges who issued the Court’s decision have voted to grant panel rehearing.

Accordingly, the opinion entered June 18, 2018 is hereby VACATED and a revised

opinion will be entered. The petition for rehearing en banc is denied without prejudice in

light of the grant of panel rehearing. The parties may renew their request for rehearing en

banc within fourteen days of the date of this order pursuant to Fed.R.App.P. 35(c) and

40(a)(1) (permitting a court to extend the time for filing a petition for rehearing en banc).

Judge Jordan would have granted rehearing en banc and writes separately on the matter,

joined by Judges Chagares, Hardiman, and Bibas.


                                            BY THE COURT,


                                            s/ Theodore A. McKee
                                            Circuit Judge
Date: July 26, 2018
CJG/cc:       All Counsel of Record




*
    The Honorable Richard L. Nygaard’s vote is limited to panel rehearing.
                                               2
JORDAN, Circuit Judge, joined by Chagares, Hardiman and
Bibas, Circuit Judges, dissenting.

        The record in this case, as described in the revised panel
opinion, can support the factual conclusion that the Boyertown
Area School District engaged in a thoughtful and deliberative
process to address a controversy over transgender students’
desire to use school bathrooms and locker rooms of their
choice. Those same facts also can support the legal conclusion
that the policy Boyertown eventually decided upon is sufficient
to withstand the Appellants’ request for a preliminary
injunction. Thus, my purpose in writing now is not to take
issue with the panel’s ultimate denial of injunctive relief. It is
rather to note my disagreement with the panel’s suggestion that
it would have been a violation of federal law for the school
district to adopt a policy requiring transgender students to
either use a single-user bathroom or facilities corresponding to
their biological sex.1 Accordingly, I dissent from the Court’s
denial of the Appellants’ petition for rehearing en banc.

       The revised panel opinion rightly acknowledges that a
school policy addressing transgender students’ use of
bathrooms and locker rooms is a matter of high importance to
Boyertown and its students. Given that public importance and
the obvious sensitivity of the issues involved, one would have
thought that the opinion would address only the facts at issue
and then only to the extent necessary. But the panel went
beyond what was necessary when it chose to address
Boyertown’s tangential argument that the school district would
have run afoul of Title IX had it implemented a policy that
confined transgender students to use of bathrooms and locker
rooms designated for their biological sex. The revised panel
opinion claims that “requiring transgender students to use
single user or birth-sex-aligned facilities is its own form of
discrimination.” Doe v. Boyertown Area Sch. Dist., No. 17-
3113, slip op. at 19 (3d Cir. July 26, 2018). In approving
                                                            
              1
                 As
            an aside, I also note my discomfort with the tone
of the opinion at certain points, which, despite the panel
members’ assurance that they do not intend to minimize the
concerns of the Appellants regarding privacy in dealing with
hygiene and bodily functions, seems very much to minimize
those concerns and treat them as a thin cover for bigotry. 
                                                               1
 
Boyertown’s decision to permit transgender students to use the
bathrooms and locker rooms of their choice, the revised
opinion implies that the school district would have been legally
mistaken to do otherwise, saying Boyertown “can hardly be
faulted for … adopting a policy that avoids the issues that may
otherwise have occurred under Title IX.” Id. at 29.

        That suggestion is unnecessary and is certainly open to
debate.2 True, the revised opinion is not as far out on a limb as
the originally published opinion was. The idea that Boyertown
could not have designed a constitutionally acceptable policy
that required transgender students to use single-user bathrooms
and locker room facilities or ones corresponding to their
biological sex was more explicit in that earlier opinion. See
Doe v. Boyertown Area Sch. Dist., 893 F.3d 179, 199 (3d Cir.
2018) (“Title IX prohibits discrimination against transgender
students in school facilities …. Therefore a court may not issue
an injunction that would subject the transgender students to
different conditions than their cisgender peers are subjected
                                                            
              2
           Underlying that debate is the substantial controversy
over how to interpret the meaning of the word “sex” in Title
IX, namely, whether Title IX’s use of the term denotes only
biological sex or if it also encompasses concepts of gender
identity. In assuming the latter, the revised opinion ignores
the clear-statement rule, which limits liability for legislation
enacted pursuant to the Spending Clause such as Title IX.
See Davis v. Monroe Cty. Bd. of Ed., 526 U.S. 629, 640
(1999) (treating Title IX as Spending Clause legislation);
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17
(1981) (adopting clear-statement rule for Spending Clause
legislation). That rule requires “Congress [to] speak with a
clear voice” and “unambiguously” put state funding recipients
on notice of the conditions of federal funds. Pennhurst, 451
U.S. at 17. Nowhere does Title IX unambiguously specify
liability for failure to open locker rooms and bathrooms to
transgender students of the opposite sex. I am not
encouraging the panel to go deeper into dicta by addressing
the clear-statement rule. I am simply pointing out that one of
the problems with sweeping statements of the sort that still
characterize the revised opinion is that they sidestep nuanced
analysis that would necessarily be undertaken if a properly
presented issue were under consideration.
                                                               2
 
to.”), vacated by order of July 26, 2018. Nevertheless, even
the revised opinion appears to communicate the same
unwarranted and unsupported implication.           Although I
appreciate the panel’s thoughtful effort to cure the overreach
in its now-vacated opinion, it still wrongly suggests that our
Court has reached decisions that it has not.

        There is a good reason why we avoid wading into
fraught waters without needing to and without careful legal
analysis supporting the conclusions we reach. Dicta are often
dangerous. Because they are unmoored from any concrete set
of facts and are frequently the product of judicial musing rather
than adversarial presentations from parties with a vested
interest in exploring issues in detail, dicta can be ill-informed.
All too often, they can short-circuit the legal process and end
up substituting mere assertion for reason. As has been wisely
observed, “[t]he problem is that dicta no longer have the
insignificance they deserve. They are no longer ignored.
Judges do more than put faith in them; they are often treated as
binding law. The distinction between dictum and holding is
more and more frequently disregarded.” Pierre N. Leval,
Judging Under the Constitution: Dicta about Dicta, 81 N.Y.U.
L. Rev. 1249, 1250 (2006).

       Reasonable people can and will disagree about the most
appropriate way to address transgender students’ desire to
select which bathroom or locker room facilities to use. It is a
problem without a perfect solution, and we have not even
begun to analyze those competing interests except for in this
one specific fact circumstance presented for preliminary
injunctive relief. Despite that, the panel’s dicta in the revised
opinion continue to imply otherwise, and so are likely to
handicap efforts by local school districts throughout this
Circuit to thoughtfully address how to best handle the issue in
their own communities. The law does not mandate only one
outcome, as the panel opinion suggests.3
                                                            
               3
                   The revised panel opinion still relies on the United
States Court of Appeals for the Seventh Circuit’s recent
opinion in Whitaker v. Kenosha Unified School District No. 1
Board of Education, 858 F.3d 1034 (7th Cir. 2017). The
court in Whitaker affirmed a lower court’s order granting the
plaintiff, a biological girl, an injunction permitting use of the
                                    3
 
        It is the province of elected officials, including those on
local school boards, to weigh competing interests and debate
the wisdom of policy choices. It is our role to assess whether
a specific policy choice, as understood in a specific factual
context, violates the Constitution or other federal law. That is
as far as we should go.

      In short, because “both the adversary system and the
premise that courts have less authority to prescribe general-
                                                            
boys’ bathrooms at school. Id. at 1039. Employing a sex-
stereotyping theory of discrimination, the court reasoned that
the student had demonstrated a reasonable likelihood of
success on a Title IX claim that the school district had
discriminated on the basis of sex by prohibiting use of the
boys’ bathrooms. Id. The sex-stereotyping theory, also
known as gender-stereotyping, derives from Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989). We have
accepted that theory and permit plaintiffs to sue for sex
discrimination on the basis of “noncompliance with gender
stereotypes.” Prowel v. Wise Business Forms, Inc., 579 F.3d
285, 290 (3d Cir. 2009) (citation omitted). According to
Whitaker, “[a] policy that requires an individual to use a
bathroom that does not conform with his or her gender
identity punishes that individual for his or her gender non-
conformance[.]” 858 F.3d at 1049. Whitaker is alone among
the courts of appeals, however, in concluding that a policy
requiring employees or students to utilize bathroom facilities
corresponding to their biological sex is tantamount to sex-
stereotyping discrimination. Indeed, the issue has been
viewed very differently by the United States Court of Appeals
for the Tenth Circuit. That court has stated in a Title VII case
that “prohibition on sex discrimination, however, does not
extend so far” as to require a government entity to permit a
transsexual person to use the bathroom designated for use by
persons of the opposite biological sex. Etsitty v. Utah Transit
Auth., 502 F.3d 1215, 1224 (10th Cir. 2007). And Title IX’s
implementing regulations expressly permit schools to
“separate toilet, locker room, and shower facilities on the
basis of sex.” 34 C.F.R. § 106.33. To say or imply that there
is only one legally defensible policy decision that a school
district can reach is not only unsupported; it is unsupportable.
                                                               4
 
purpose rules than do legislatures are so firmly rooted in
American legal practice as to rank as axiomatic[,]” Michael C.
Dorf, Dicta and Article III, 142 U. Pa. L. Rev. 1997, 2003
(1994) (footnote omitted), it is equally axiomatic that we
should confine ourselves to resolving the specific matters
before us, not some bigger issue we might like to address. I
therefore vote for rehearing en banc to vacate the panel opinion
and give our full Court the opportunity to consider the case and
articulate an appropriately limited rationale for our result.




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