Students ask Supreme Court to overturn school district's transgender bathroom policy

Eight year old student Zachary Lanterman, who is home schooled, works on class work at the computer at the Pride School in Atlanta, Georgia, on December 7, 2016. |

A group of Pennsylvania students has asked the U.S. Supreme Court to protect their “bodily privacy” in school by overturning their school district’s transgender-inclusive bathroom and locker room policy.

Represented by the conservative nonprofit legal group Alliance Defending Freedom, the group of anonymous students filed an appeal with the nation’s highest court on Monday, asking it to overturn a ruling from the Third Circuit of the U.S. Court of Appeals favoring the Boyertown Area School District.

The students sued the school district after it decided in the 2016-2017 school year to change its policy to allow students to use bathrooms and locker rooms consistent with their gender identity rather than their biological sex.

The school district’s policy change came after the Obama administration sent out a guidance in 2016 (that has since been rescinded by the Trump administration) to public school districts nationwide, urging them to allow boys who identify as girls to use the girls' bathrooms, locker rooms and showers, and vice versa.

According to ADF, the BASD changed its policy without informing parents or students, which led some students to find out about the policy while they were getting undressed in front of other students of the opposite sex who were in the same locker room.

“Embarrassed and confused, petitioner Joel Doe went to school officials, and the officials said to try and act ‘natural,’” the lawsuit explains. “Joel Doe was marked down in gym class for failing to change his clothes, and he eventually felt forced to leave the school entirely.”

In June, a three-judge panel on the Third Circuit ruled that a U.S. District Court “correctly concluded” that the student’s claims for privacy rights were not “likely to succeed on the merits.”

Furthermore, the Third Circuit panel asserted that the school had adopted a “very thoughtful and carefully tailored policy” to “address some very real issues while faithfully discharging its obligation to maintain a safe and respectful environment in which everyone can both learn and thrive.”

In the appeal to the Supreme Court, ADF argued that the Third Circuit’s decision is faulty because the Supreme Court has “long recognized the need for separating male and female students in locker rooms, restrooms, and showers.”

The appeal also states that the Third Circuit “decided that a male who identifies as a female is, in fact, female, and vice versa.” As well, ADF asserts that the “the court criticized Petitioners for declining to embrace the view that their right not to be viewed undressed by members of the opposite sex depends entirely on what another person believes about their own gender.”

“Forcing a teenager to share a locker room or restroom with a member of the opposite sex can cause embarrassment and distress, particularly for students who have been victims of
sexual assault,” the appeal states. “Recognizing this reality does not diminish
concern for students who believe they are of the opposite sex.”

ADF Senior Counsel and Vice President of Appellate Advocacy, John Bursch, said in a statement that there are “sound reasons” for why schools have separated male and female teenagers in showers, restrooms and locker rooms.

“No student’s recognized right to bodily privacy should be made contingent on what other students believe about their own gender,” Bursch said. “The Third Circuit’s decision made a mess of bodily privacy and Title IX principles, and the decision deserves review and reversal by the U.S. Supreme Court.”

BASD lawyer Michael Levin told The Morning Call that the district plans to file a response to the Supreme Court reflecting that the district “believes the lower court decisions were well-reasoned and will be able to be defended.”

Also listed as defendants in the case is the statewide pro-LGBT advocacy organization Pennsylvania Youth Congress, which intervened in the case on behalf of an transgender student. According to The Morning Call, the American Civil Liberties Union of Pennsylvania has joined the case on behalf of the PYC.

“Their claim that transgender students are a threat to others is offensive and not supported by the evidence in Boyertown or schools around the country,” ACLU attorney Ria Tabacco Mar argued.

The ADF is aided in this case by Independence Law Center.

“Schools should not expect students to accept that the differences between females and males don’t matter in the very places set apart for privacy from the opposite sex,” ILC Chief Counsel Randall Wenger said in a statement.

Other circuit courts have also ruled that trans-identified students have the right to use bathrooms and locker rooms consistent with their gender identity. Last year, the Seventh Circuit ruled in that the Kenosha Unified School District in Wisconsin violated the rights of a trans-identified student by requiring that students use facilities consistent with their biological sex.

Last year, the Supreme Court sent a similar appeal filed by a Virginia school district back to a lower court for review after the Fourth Circuit ruled that a trans-identified student had the right to access facilities according to their gender identity.

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