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Supreme Court leaves in place Pennsylvania policy supporting transgender students

(Ricky Carioti/The Washington Post)

The Supreme Court on Tuesday declined to review a Pennsylvania school district’s policy letting transgender students use restrooms and locker rooms that match their gender identities, disappointing conservatives who have opposed similar policies in schools nationwide.

Without comment, the court declined to review an opinion from the U.S. Court of Appeals for the 3rd Circuit that upheld the Boyertown Area School District policy. A half-dozen current and former students sued the school system in 2017, saying that allowing transgender students to change clothes alongside them in locker rooms and to use the same bathrooms violated the privacy rights of students who are not transgender. The appeals court ruled last year that the students who sued had failed to show how transgender students violated their privacy rights more than non-transgender students did.

Federal appeals court upholds school’s policy allowing transgender students to use locker rooms

The Supreme Court’s decision allows the Boyertown policy to stand. Though it does not set precedent, advocates declared the decision to stay out of the case a win.

Ria Tabacco Mar, senior staff attorney with the ACLU LGBT & HIV Project, called it an “enormous victory for transgender students across the country.”

“Boyertown’s schools chose to be inclusive and welcoming of transgender students in 2016, a decision the courts have affirmed again and again,” Mar said.

John Bursch, an attorney with the Alliance Defending Freedom, said he was disappointed the high court decided against taking the case. But he said his organization, which represents the students suing Boyertown, is undeterred in its fight.

“No student’s recognized right to bodily privacy should be made contingent on what other students believe about their own gender,” Bursch said. “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.”

Schools, statehouses and the courts have wrestled with accommodating transgender students in bathrooms and locker rooms. Transgender students say they should be able to use bathrooms and locker rooms just like their classmates, and argue that pushing them into alternative facilities — such as nurse’s restrooms — isolates and stigmatizes them. Opponents of policies such as Boyertown’s say they violate privacy and traditional values.

“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,” said Aidan DeStefano, a transgender student who recently graduated from a high school in the Pennsylvania school system. “I’m glad the Supreme Court is allowing schools like mine to continue supporting transgender students.”

The Obama administration in 2016 directed public schools to allow transgender students into locker rooms and bathrooms that match their gender identity. The administration declared that Title IX, the federal law barring sex discrimination in schools receiving federal funding, protects transgender students’ rights. Later, the Supreme Court agreed to hear a case that would have reviewed the guidance.

Court sides with transgender student in his fight to use the boys’ bathroom

The following year, President Trump’s education secretary and then-attorney general — Betsy DeVos and Jeff Sessions — rescinded the Obama-era guidance, and the Supreme Court decided to no longer hear the case.

Because the Supreme Court has never taken up the question, states and school leaders have been left to decide whether transgender students can use facilities that match their gender identities. Some have banned students from using bathrooms that do not correspond with the sex on their birth certificate, and many schools deal with transgender students on a case-by-case basis.

Many school systems — and some states — have policies comparable to Boyertown’s. Advocates argue that Title IX protects the right of transgender students to use bathrooms of their choice. And transgender students say they seek to be treated like their classmates, not singled out in a way that calls attention to their being transgender.

Opponents argue the opposite — that permitting transgender students into locker rooms and bathrooms of their choice violates Title IX rights of students who are not transgender. They disagree that Title IX protects transgender students in that context.

“These types of school policies have serious privacy implications. That’s why we hope the Supreme Court will eventually weigh in to protect students’ constitutional right to bodily privacy,” Christiana Holcomb, an attorney for the Alliance Defending Freedom, said in a statement. “All schools, including Boyertown Area School District, should be providing compassionate support for those dealing with gender dysphoria, but they should do so in ways that protect the privacy of all students.”

The alliance has launched similar legal challenges in a Chicago suburb, a case that parents dropped earlier this year, and in the town of Dallas, Ore., a lawsuit that was dismissed by a federal judge last year. The alliance has appealed that case.

Mar said the argument — that transgender students threaten the privacy of their classmates — has never held water in court. “No court has accepted the notion that transgender people are a threat to others,” Mar said. “In the few challenges that have arisen to transgender-inclusive policies, courts have uniformly allowed those policies to continue.”

The Pennsylvania case is Doe v. Boyertown Area School District.