The U.S. Supreme Court this week declined to hear an appeal filed by students at Boyertown Area Senior High School who object to transgender students using restrooms and locker rooms that correspond to their gender identity.
Alliance Defending Freedom, an Arizona-based anti-LGBT group, filed the appeal Nov. 19 on behalf of two current and four former Boyertown High students. The Supreme Court announced May 28 that it won’t hear the case, without elaborating.
Michael I. Levin, an attorney for the Boyertown Area School District, said district officials are happy with the decision.
“We are very pleased that the court saw there was no need to consider the case further,” Levin told PGN.
“This is great news for trans students throughout Pennsylvania,” added Jason Landau Goodman, executive director of Pennsylvania Youth Congress. “The U.S. Supreme Court evaluated the case and decided that the lower-court rulings for trans-student inclusion should stand.”
Ria Tabacco Mar, senior staff attorney with the ACLU LGBT and HIV Project, also praised the decision.
“This is an enormous victory for transgender students across the country,” Mar said in a statement. “Boyertown’s schools chose to be inclusive and welcoming of transgender students in 2016, a decision the courts have affirmed again and again. 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.
“But our work is far from over,” added Mar. “We will continue to defend the transgender community from attacks in the courts, the legislatures and the White House.”
Mary Catherine Roper, deputy legal director for the ACLU of Pennsylvania, echoed Mar’s sentiments.
“The decision from the Third Circuit protects schools that want to enact trans-positive policies and practices. That is great news,” Roper told PGN. “It should not be a surprise to anyone that schools can protect trans students without infringing other students’ rights. But it is important that we have a strong court decision from the Third Circuit that says that.”
Aidan DeStefano, a recent graduate of Boyertown High who is transgender, issued a statement in support of the decision.
“By the time I graduated high school, I was using the boys’ bathroom and participating on the boys’ cross-country team. I felt like I belonged and had the confidence I needed to continue with my education,” he said. “I’m glad the Supreme Court is allowing schools like mine to continue supporting transgender students.”
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.
The cisgender students initiated the litigation in March 2017, claiming Boyertown school district’s trans-friendly policy violated their privacy rights and created a “hostile environment” for them.
The plaintiffs wanted U.S. District Judge Edward G. Smith to issue a preliminary injunction halting implementation of the policy, but Smith declined to do so. In August 2017, Smith ruled that the trans-friendly policy didn’t violate the privacy rights of cisgender students.
Ten months later, the Third Circuit Court of Appeals upheld Smith’s ruling.
“Transgender students face extraordinary social, psychological and medical risks and the school district clearly had a compelling state interest in shielding them from discrimination,” a three-judge panel of the Third Circuit wrote.
The circuit judges also noted 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 judges wrote.
Additionally, the panel 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.”
In their appeal, the plaintiffs emphasized what they said was a need for the Supreme Court to intervene.
“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,” the plaintiffs’ attorneys wrote in their 32-page appeal.
Cisgender students testified during a lower-court proceeding in July 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 stated.
Dr. Dana T. Bedden, superintendent of Boyertown Area School District, issued a statement emphasizing acceptance and inclusivity.
“I hope that we will have an opportunity to move forward with healing and acceptance of differences in an inclusive manner. Inclusive education for students, staff and the community can only be successful when the Boyertown Area School District community feels that each person is genuinely a part of the school district,” Bedden stated. “Creating a place where everyone feels welcome will require an open and honest discussion about differences where everyone has a voice, and institutional respect for people of all backgrounds and abilities. In inclusive schools, the establishment of such a climate benefits everyone by fostering an environment where our students and their families are valued.”
John Bursch, senior counsel at Alliance Defending Freedom, issued a statement emphasizing privacy rights.
“Students struggling with their beliefs about gender need compassionate support. But sound reasons based on common sense have always existed for schools to separate 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 wrote. “Because the Third Circuit’s decision made a mess of bodily privacy and Title IX principles, we believe the Supreme Court should have reviewed it. But we hope the court will take up a similar case in the future to bring much-needed clarity to how the lower courts should handle violations of well-established student privacy rights.”
Randall L. Wenger, another attorney for the cisgender students, couldn’t be reached for comment. He wrote in a Nov. 21, 2018, 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.”
Mara Keisling, executive director of the National Center for Transgender Equity, said in a Nov. 26, 2018, email: “[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. This petition to the Supreme Court is a ludicrous attempt to justify blatant prejudice. But the Alliance Defending Freedom clearly believe they’ll have a friendly audience for their hateful arguments in a Supreme Court with two Trump nominees joining the bench.”