Advocates for LGBT equality are blasting an appeal recently filed with the U.S. Supreme Court that seeks to prevent transgender students at Boyertown Area Senior High School from using restrooms and locker rooms consistent with their gender identity.
The high court is expected to announce within the next six weeks whether it will hear the appeal. The vast majority of appeals filed with the court aren’t accepted for consideration.
Alliance Defending Freedom, a D.C.-based anti-LGBT group, filed the appeal Nov. 19 on behalf of six current and former Boyertown High students. Plaintiffs are appealing a Third Circuit Court of Appeals ruling that upholds a trans-friendly policy implemented at Boyertown High two years ago.
The appeal “is a mean-spirited attempt by the plaintiffs to overturn the very reasonable analysis and conclusions of the Third Circuit Court of Appeals,” said Mark-Allen Taylor, a Philadelphia-based family-law attorney. “Plaintiffs are acting in concert with President Trump’s anti-trans-animus agenda and probably hoping that the new configuration of the Supreme Court will work in their favor.”
Mara Keisling, executive director of the National Center for Transgender Equity, echoed Taylor’s sentiments. “[Plaintiffs] claim the mere existence of transgender youth is somehow a violation of privacy for other students, which is untrue and profoundly harmful to hundreds of thousands of families across the country,” Keisling said. “This petition to the Supreme Court is a ludicrous attempt to justify blatant prejudice. But the ADF clearly believe they’ll have a friendly audience for their hateful arguments in a Supreme Court with two Trump nominees joining the bench.”
Ria Tabacco Mar, an ACLU senior staff attorney, called the appeal an “attack” on the trans community.
“Boyertown schools chose to be inclusive and welcoming of transgender students two years ago,” Mar said in a statement. “Now anti-LGBTQ extremists are asking the Supreme Court to rule that local school districts like Boyertown are not only wrong, but prohibited by the constitution from doing the right thing.
“We will continue to fight for transgender students with everything that we have — including at the U.S. Supreme Court,” she added.
Boyertown is a borough in Berks County with a population of about 4,000, located 37 miles northwest of Philadelphia. The high school has 1,650 students from grades 10-12.
In August 2017, U.S. District Judge Edward G. Smith ruled that trans students could access restrooms and locker rooms consistent with their gender identity and not violate the privacy rights of cisgender students. Ten months later, the Third Circuit Court of Appeals upheld Smith’s ruling.
The plaintiffs hope the U.S. Supreme Court will reverse the Third Circuit’s ruling.
“It is untenable that the Third Circuit Court of Appeals made students’ right to bodily privacy contingent on what others believe about their own gender. This court’s immediate intervention is sorely needed,” attorneys stated in the 32-page appeal.
Cisgender students testified during a lower-court proceeding in 2017 “about how uncomfortable they were finding themselves with members of the opposite sex when undressed in the locker room or when in the restroom, all because of Boyertown’s policy,” the appeal states.
John J. Bursch, senior counsel with Alliance Defending Freedom, said in a statement: “There are sound reasons why schools have always 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.”
Randall L. Wenger, another attorney for the plaintiffs, wrote in a Nov. 21 email: “The evidence is that students change [clothes] in the locker rooms and the restrooms, sometimes completely removing their clothes. It’s this context, where bodily anatomy is exposed, that bodily privacy matters. If anatomical differences didn’t matter, there would be no need for separate spaces.”
Michael I. Levin, an attorney for the Boyertown Area School District, told PGN he expects to file a response to the appeal within 30 days.
“The school district believes the lower-court decisions were well-reasoned and will be able to be defended,” Levin said.