Challenge to District’s Pro-Transgender Policy Reaches U.S. Supreme Court

By Mark Walsh — November 20, 2018 3 min read
  • Save to favorites
  • Print

A group of Pennsylvania high school students has appealed to the U.S. Supreme Court a lower-court ruling that upheld a school district’s policy of permitting transgender students to use restrooms or locker rooms consistent with their gender identity.

The students challenging the policy are backed by the Alliance Defending Freedom, the Scottsdale, Ariz.-based legal organization that has been involved in numerous similar cases, either helping defend districts that have refused to adopt pro-transgender policies or representing students who object on privacy grounds to sharing restrooms and locker rooms with transgender students.

“Forcing a teenager to share a locker room or restroom with a member of the opposite sex can cause embarrassment and distress,” says the appeal filed Nov.19 in Doe v. Boyertown Area School District.

The ADF consistently refers to transgender students who are permitted to use facilities consistent with their gender identity as being of “the opposite sex” of the gender designation for that facility.

At issue is the pro-transgender policy of the Boyertown, Pa., school district, adopted beginning in the 2016-17 school year. Four students who felt uncomfortable with the policy challenged it in court on the basis that it violates their privacy rights and U.S. Department of Education regulations under Title IX of the Education Amendments of 1972. The department’s regulations, dating to the 1970s, permit schools to “separate toilet, locker room, and shower facilities on the basis of sex.”

However, the statute, which bars discrimination based on sex in educational programs that receive federal funds, has increasingly been interpreted to protect students on the basis of gender identity.

In the Boyertown case, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, unanimously rejected the challenge to the school district’s pro-transgender policy. After a vigorous debate by the full 3rd Circuit court, which declined to rehear the case, the panel softened some of its initial reasoning and held in July that the policy was supportable under Title IX and did not create a “hostile environment” for the objecting students. (An earlier version of the opinion had said that Title IX required schools to allow transgender students to use facilities consistent with their gender identity.)

In the appeal to the Supreme Court on behalf of the four objecting students, the ADF takes pains to state that “schools can (and should) teach that every student has inherent dignity and worth and should be treated as such.”

“Schools can (and should) assure students with gender dysphoria that they are valuable and important members of the school community,” the brief adds. “And school officials can (and should) provide them with resources and support.”

The brief says the students who object to the district’s policy reasonably felt “embarrassed by the presence of opposite-sex students in the locker room and restrooms,” so much so that one plaintiff student left the school.

“It didn’t have to be that way,” the ADF brief says, arguing that one transgender student had used individualized facilities in the district without incident. (Most transgender students have objected to such an option because, they say, it singles them out for disparate treatment.)

The Supreme Court can expect to hear from the Boyertown school district, as well as the American Civil Liberties Union, which is representing a transgender advocacy group and a recent graduate of the district who is transgender as intervenors in the case.

But the question of whether the justices take up the Boyertown case may be influenced by three pending appeals at the court that raise the question of whether the main federal employment-discrimination law—Title VII of the Civil Rights Act of 1964—covers discrimination on the basis of sexual orientation or gender identity.

Those cases are Altitude Express Inc. v. Zarda (No. 17-1623) and Bostock v. Clayton County, Ga. (No. 17-1618), which raise the sexual orientation issue; and R.G. and G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), which raises the transgender issue.

The justices are scheduled to consider those appeals at their private conference on Nov. 30, and a grant of any of those cases might mean the court would put the students’ appeal in the Boyertown case on hold pending the outcome.

A version of this news article first appeared in The School Law Blog.


This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Teaching Webinar
6 Key Trends in Teaching and Learning
As we enter the third school year affected by the pandemic—and a return to the classroom for many—we come better prepared, but questions remain. How will the last year impact teaching and learning this school
Content provided by Instructure
Teaching Profession Live Online Discussion What Have We Learned From Teachers During the Pandemic?
University of California, Santa Cruz, researcher Lora Bartlett and her colleagues spent months studying how the pandemic affected classroom teachers. We will discuss the takeaways from her research not only for teachers, but also for
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Student Well-Being Webinar
Trauma-Informed Practices & the Construction of the Deep Reading Brain
Join Ryan Lee-James, Ph.D. CCC-SLP, director of the Rollins Center for Language and Literacy, with Renée Boynton-Jarrett, MD, ScD., Vital Village Community Engagement Network; Neena McConnico, Ph.D, LMHC, Child Witness to Violence Project; and Sondra
Content provided by Rollins Center

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Education Hundreds of Conn. Bus Drivers Threaten to Walk Off the Job Over Vaccine Mandate
More than 200 school bus drivers could walk off the job in response to a vaccination mandate that goes into effect Monday.
1 min read
Rows of school buses are parked at their terminal, in Zelienople, Pa. Reopening schools during the coronavirus pandemic means putting children on school buses, and districts are working on plans to limit the risk.
Rows of school buses are parked at their terminal, in Zelienople, Pa. Reopening schools during the coronavirus pandemic means putting children on school buses, and districts are working on plans to limit the risk. <br/>
Keith Srakocic/AP Photo
Education Briefly Stated: September 22, 2021
Here's a look at some recent Education Week articles you may have missed.
9 min read
Education Schools Get the Brunt of Latest COVID Wave in South Carolina
In the past few weeks, South Carolina has set records for COVID-19 hospitalizations and new cases have approached peak levels of last winter.
4 min read
Two Camden Elementary School students in masks listen as South Carolina Gov. Henry McMaster talks about steps the school is taking to fight COVID-19, Wednesday, Sept. 15, 2021, in Camden, S.C. McMaster has adamantly and repeatedly come out against requiring masks in schools even as the average number of daily COVID-19 cases in the state has risen since early June. (AP Photo/Jeffrey Collins)
Education More States Are Requiring Schools to Teach Native American History and Culture
Advocates say their efforts have gained some momentum with the nation’s reckoning over racial injustice since the killing of George Floyd.
3 min read
A dancer participates in an intertribal dance at Schemitzun on the Mashantucket Pequot Reservation in Mashantucket, Conn., Saturday, Aug. 28, 2021. Connecticut and a handful of other states have recently decided to mandate students be taught about Native American culture and history. (AP Photo/Jessica Hill)