SCOTUS allows transgender students use bathroom of gender they identify with

by Kim Boateng Posted on May 29th, 2019

Washington: The Supreme Court on Tuesday declined to hear a challenge to a Pennsylvania school district’s policy allowing some transgender students to use the bathroom of the gender they identify with, clearing the way for the law to go into effect.

Six student plaintiffs claimed that the policy set by Boyertown Area School District in central Pennsylvania amounted to sexual harassment and violated their privacy rights.

“Forcing a teenager to share a locker room or restroom with a member of the opposite sex can cause embarrassment and distress,” their lawyers wrote in court documents. “The district’s policy was a drastic change from the way locker rooms and restrooms have been regulated for the entire history of public-school systems.”

The school district’s attorneys had argued that the new policy merely allowed transgender students the same rights as the rest of the student population.

The district “believes that transgender students should have the right to use school bathroom and locker facilities on the same basis as non-transgender students,” its attorneys wrote.

On Tuesday, the Court let stand a ruling by the Philadelphia-based Third U.S. Circuit Court of Appeals, which found that the policy helped tamp down discrimination against transgender students.

“Boyertown’s schools chose to be inclusive and welcoming of transgender students in 2016, a decision the courts have affirmed again and again,” the American Civil Liberties Union said in a statement after the Court’s ruling was announced. “This lawsuit sought to reverse that hard-won progress by excluding transgender students from school facilities that other students use. That would have increased the stigma and discrimination that transgender students already face.”

Ria Tabacco Mar, a senior staff lawyer with the American Civil Liberties Union, hailed the Supreme Court’s decision.

“This is an enormous victory for transgender students across the country,” said Mar, who intervened in the case on behalf of the Pennsylvania Youth Congress, a coalition of LGBTQ youth leaders. “Boyertown’s schools chose to be inclusive and welcoming of transgender students. … This lawsuit sought to reverse that hard-won progress.”

Meanwhile, Christiana Holcomb, legal counsel for the Alliance Defending Freedom, the Christian advocacy law firm that represented the suing students, vowed that her firm’s fight on the issue would continue — even if the Boyertown case was over.

“We hope the Supreme Court will eventually weigh in to protect students’ constitutional right to bodily privacy,” she said. “All schools, including [Boyertown], should be providing compassionate support for those dealing with gender dysphoria, but they should do it in a way that protects the privacy of all students.”

The Supreme Court’s decision on Tuesday leaves standing an earlier ruling by a three-judge panel of the U.S. Court of Appeals for the Third Circuit, which in an unusual move last year issued its decision upholding the policy less than 20 minutes after hearing the arguments of the protesting students.

Circuit Judge Theodore McKee said at the time that the students had failed to show that they were irreparably harmed by the school district’s policy — especially given the steps the Boyertown district had taken to accommodate those who did not feel comfortable sharing facilities with transgender teens.

The district implemented its transgender restroom policy in 2016 under Obama-era guidelines that required all federally funded school districts to recognize basic transgender student rights and chose to stick with them after Trump eliminated those standards soon after taking office.

To accommodate anyone who was uncomfortable, district officials expanded the number of single-user restrooms, alternative locker rooms, and private stalls across their high school’s campus so that any student could use them, instead, if they preferred.

Aidan DeStefano, a recent Boyertown graduate and transgender male, described that policy as crucial to his emotional well-being during his high school experience.

“By the time I graduated, I was using the boys’ bathroom and participating on the boys’ cross-country team,” he said Tuesday. “I felt like I belonged and had the confidence I needed to continue with my education.”

The six students who filed suit in 2017 argued that the policy effectively forced them into using the alternate facilities — a move they described as a form of discrimination. They argued that the only solution was to overturn the policy and return to the status quo — a suggestion that seemed to hold little sway with the Third Circuit’s judges last May.

“You could have come in here during Brown v. Board of Education and said, ‘Let’s go back to the status quo,’” McKee told the students’ lawyers, referring to the landmark Supreme Court decision that struck down racial segregation policies in public schools. “These types of cases wouldn’t happen if the answer was always, ‘Go back to the status quo.’”

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