An attorney for six current and former students at Boyertown Area Senior High School vowed to appeal last week’s judicial ruling that upholds the right of transgender students to use restrooms, locker rooms and other facilities consistent with their gender identities.
The June 18 ruling by a three-judge panel of the Third Circuit Court of Appeals affirms “the needs, humanity and decency of transgender students.” It supplements a court order the panel issued May 24, after hearing oral arguments on the dispute.
Randall L. Wenger, chief counsel for Independence Law Center, a conservative civil-rights organization based in Harrisburg, said he will file an appeal by July 2.
In a June 22 email, Wenger said the appeal will seek review of the ruling by all 12 active judges of the Third Circuit along with Senior Judge Richard L. Nygaard. If the ruling isn’t overturned, Wenger said he may petition the U.S. Supreme Court to review the matter.
The cisgender students initiated the litigation in September 2017, claiming Boyertown school district’s trans-friendly policy violated their privacy rights and created a “hostile environment” for them.
The students asked U.S. District Judge Edward G. Smith to issue a preliminary injunction halting implementation of the policy, but Smith refused. The June 18 ruling upholds Smith’s refusal to issue an injunction.
“Transgender students face extraordinary social, psychological and medical risks and the school district clearly had a compelling state interest in shielding them from discrimination,” the 34-page ruling states.
The ruling goes on to note that cisgender students who feel uncomfortable sharing a restroom or locker room with their transgender classmates can use single-occupant restrooms or alternate locker rooms available at the high school.
Forcing transgender students to use facilities not consistent with their gender identity “would very publicly brand all transgender students with a scarlet ‘T,’ and they should not have to endure that as the price of attending their public school,” the ruling stated.
Additionally, the panel of judges found that the cisgender litigants have unreasonable privacy expectations. “Appellants are claiming a very broad right of personal privacy in a space that is, by definition and common usage, just not that private. There is simply nothing inappropriate about transgender students using the restrooms or locker rooms that correspond to their gender identity under the policy the [school district] has initiated. And we reject appellants’ attempt to argue that there is.”
The ruling repeatedly refers to non-trans students as “cisgender,” making the Third Circuit Court of Appeals the first federal appellate court to use this term, according to a June 19 blog posted by the American Civil Liberties Union.
Boyertown school-district officials issued this statement on June 19: “The Boyertown Area School District, which deeply respects and is sensitive to the privacy rights of all students, is gratified with the Third Circuit Court of Appeals ruling that unquestionably supports the district’s actions regarding matters of bathroom/locker room facility access and accommodation. While we have always recognized the right of the plaintiffs to file their challenge, in light of this decision, we again acknowledge and applaud all those that have supported our efforts, including the work of our legal team.”