The U.S. Supreme Court has decided not to hear a case that challenged a Pennsylvania school district’s policy allowing transgender students to use locker rooms and restrooms that correspond with their gender identity.
If the court had heard the case, it would have had major significance for school policies affecting transgender youth across the country. Instead it let a lower court’s ruling in Doe v. Boyertown School District stand. The U.S. Court of Appeals for the Third Circuit decided to uphold the school district’s policy in a unanimous ruling in May 2018.
In 2017, a cisgender student sued his school because he noticed a transgender student changing in the locker room and it made him uncomfortable. His complaint said it caused him “embarrassment” and “humiliation,” and it referred to the transgender student with she/her pronouns.
But the court didn’t buy that his discomfort was comparable to the discrimination transgender students face. Federal judge Theodore McKee wrote for the Third Circuit that policies excluding transgender people from privacy facilities consistent with their gender is harmful to transgender people’s mental and physical health and safety. McKee wrote that the supposed harm to cisgender students who share these spaces with transgender students is simply not the same.
… We do not view the level of stress that cisgender students may experience because of appellees’ bathroom and locker room policy as comparable to the plight of transgender students who are not allowed to use facilities consistent with their gender identity. Given the majority of the testimony here and the District Court’s well-supported findings, those situations are simply not analogous.
In this case, there were also a number of alternatives for students who wanted more privacy while changing in locker rooms other than common areas. This included private shower stalls and single-user facilities. But in McKee’s opinion, he explained that forcing transgender students to use those alternatives instead of common areas 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.” Cisgender students who choose to use single-user facilities and shower stalls in the locker room would not face the same extraordinary consequences, he noted.
The Alliance Defending Freedom, a conservative legal interest nonprofit that was designated as an anti-LGBTQ hate group by the Southern Poverty Law Center, represented a group of students in the case.
ADF has fought a number of school districts that have embraced bathroom policies allowing transgender people to use bathrooms corresponding to their gender. In 2016, a number of states challenged Obama administration guidance that protected transgender students from discrimination under Title IX, and an ADF attorney represented them.
John Bursch, ADF’s senior counsel and vice president of appellate advocacy, released a statement to media on Tuesday that read, “No student’s recognized right to bodily privacy should be made contingent on what other students believe about their own gender.”
In 2017, the Supreme Court came close to hearing another case on transgender people’s access to facilities. The court was asked to hear the case of a transgender student named Gavin Grimm who opposed his school’s bathroom policy, which did not allow him to use the boys’ restroom. However, that case, Glouchester County School Board v. G.G., was remanded to the United States Court of Appeals for the Fourth Circuit after the Trump administration rescinded Obama administration protections for transgender students.
Last year, Ria Tabacco Mar, senior staff attorney for the ACLU, told The Daily Beast that she didn’t see a need for the Supreme Court to get involved in this Pennsylvania school district case and that the courts have already ruled in “favor of inclusion.”
As Judge McKee described, transgender students’ well-being and safety is put at risk when they are forced to use bathrooms that don’t correspond to their gender. A 2017 report from the Movement Advancement Project, GLSEN, National Center for Transgender Equality and the National Education Association, showed that 70% of youth avoided bathrooms on their campuses and that in some cases, transgender people developed urinary tract infections as a result of avoiding bathrooms.
These policies also may enhance the risk of sexual assault. In a 2019 study, researchers from the Harvard T. H. Chan School of Public Health found that the risk for sexual assault among trans and nonbinary people increased when restroom and locker room access was restricted for transgender people. They found a 26% greater risk of sexual assault for transgender boys, a 42% greater risk for nonbinary people assigned female at birth, and a 149% greater risk for transgender girls.