Justices Decline to Take Up Challenge to District’s Pro-Transgender Policy

By Mark Walsh — May 28, 2019 4 min read
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The U.S. Supreme Court on Tuesday declined to hear the appeal of a group of students who object to a Pennsylvania school district’s policy of permitting transgender students to use restrooms or locker rooms consistent with their gender identity.

The justices had 10 times rescheduled their consideration of the appeal in Doe v. Boyertown Area School District (Case No. 18-658) at their private conferences, which could mean nothing or that they were exploring some other resolution of the case. But after one official consideration of it last week, the justices declined the appeal without comment.

Four students backed by the Alliance Defending Freedom, the Scottsdale, Ariz.-based legal organization that has been involved in numerous similar cases, were appealing one of the most pro-transgender rulings by a federal appeals court to date.

The Boyertown, Pa., school district, adopted its policy allowing transgender students to use facilities consistent with their gender identity beginning in the 2016-17 school year.

Four students who felt uncomfortable with the policy challenged it in court on the basis that it violated 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.

The full 3rd Circuit court held a vigorous debate but declined to rehear the case as all members of the court agreed that a preliminary injunction against the district’s policy should be denied. The panel softened some of its initial reasoning and held in July that the district’s policy was supportable under Title IX and did not create a “hostile environment” for the objecting students. (The panel backed off on an earlier version of the opinion which had said Title IX required schools to allow transgender students to use facilities consistent with their gender identity.)

Informal guidance issued by President Barack Obama’s administration in 2016 in support of transgender students, and withdrawn by President Donald Trump’s administration in 2017, was not at issue in the Boyertown case (though the guidance did prompt the district to adopt its policy).

In the Supreme Court appeal on behalf of the four objecting students, the ADF said 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.

The ADF’s appeal attracted the support of several friend-of-the-court briefs, including one filed by former U.S. Secretary of Education William J. Bennett.

“The text and legislative history of Title IX make clear that Congress understood and intended ‘sex’ to refer to an immutable physiological characteristic, not an individual’s self-reported ‘sense of self as being a particular gender,’” said the brief of the former secretary, who served under President Ronald Reagan.

Both the Boyertown school district and a group of transgender students who intervened in the case, represented by the American Civil Liberties Union, urged the justices not to take up the case.

The school district detailed how it had replaced group showers with individual showers in its locker rooms to add privacy.

“No preliminary injunction is needed to protect the privacy concerns of the [objecting] students as no student is required to undress in the presence of any other student, and single-user restrooms may be used by any students who prefer to use them,” the district’s brief said.

The ACLU’s brief said, “A school may reasonably conclude, as a matter of managing school resources and multiple interests, that it would best support the privacy and comfort of all students for boys who are transgender to use the boys’ facilities and for girls who are transgender to use the girls’ facilities while making individual private facilities available to all on an equal basis.”

In a written statement after the high court denied review of the case, John Bursch, the ADF’s senior counsel and vice president of appellate advocacy, said, “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.

“Because the 3rd Circuit’s decision made a mess of bodily privacy and Title IX principles, we believe the Supreme Court should have reviewed it,” Bursch added. “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.”

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