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

By Mark Walsh — November 20, 2018 3 min read
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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.

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