Pennsylvania Record

Tuesday, February 18, 2020

Boyertown School District's transgender restroom policy will stand after denial from SCOTUS


By Nicholas Malfitano | Jun 3, 2019


PHILADELPHIA – On Tuesday, the U.S. Supreme Court declined to hear a challenge to the Boyertown Area School District’s policy of allowing transgender students to use the restroom facilities corresponding to their gender identity.

In doing so, it upholds a concurring U.S. Court of Appeals for the Third Circuit Court decision rendered last year that denied the appeal of six students who felt the school district’s transgender restroom policy violated their right to privacy.

By their advocates, the decision is being hailed as a victory for transgender students.

“This is 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. This lawsuit sought to reverse that hard-won progress by excluding transgender students from school facilities that other students use. That would have increased the stigma and discrimination that transgender students already face,” said Ria Tabacco Mar, senior staff attorney with the American Civil Liberties Union.

“Thankfully, [this] announcement allows schools to move forward with policies that support transgender students. But our work is far from over. We will continue to defend the transgender community from attacks in the courts, the legislatures, and the White House.”

Boyertown students attempting to bring the case before the U.S. Supreme Court were represented by the Alliance Defending Freedom, a conservative, Christian law advocacy group based in Scottsdale, Ariz.

“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,” said John Bursch, ADF Senior Counsel and Vice President of Appellate Advocacy.

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

Last summer, Third Circuit judges Theodore A. McKee, Patty Shwartz and Richard L. Nygaard rejected arguments for a second time from Boyertown students who claimed the policy invaded their privacy and who requested the matter be re-heard by a full court – though it was not without dissenting voices.

After losing out in the Third Circuit’s original result in June 2018, the plaintiff students submitted a request for re-hearing of the matter by the full appellate court. The original decision’s panel of McKee, Shwartz and Nygaard agreed to a new hearing, vacated their original decision released June 18 and issued a revised version, which relied less on the question of whether the policy allegedly violated Title IX protections of the U.S. Constitution.

“Boyertown Area Senior High School has carefully crafted a policy that attempts to address the concerns that some cisgender students may have. To its credit, it has done so in a way that recognizes those concerns as well as the needs, humanity, and decency of transgender students,” McKee said in that ruling.

“Adopting the appellants’ position 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…requiring transgender students to use single user or birth-sex-aligned facilities is its own form of discrimination.”

The initial litigation began with a number of anonymous Boyertown Area Senior High School students and their parents, backed by special interest groups, who filed suit in the U.S. District Court for the Eastern District Court of Pennsylvania.

They charged that the Boyertown Area School District’s policy of allowing transgender students to use bathrooms according to gender identity violated their fellow students’ violated the constitutional right to bodily privacy, Title IX protections and tort law in the Commonwealth of Pennsylvania.

It was a rationale that did not meet with judicial approval in that court.

After the plaintiffs lost their case, they appealed to the Third Circuit – but similarly, the federal appellate court did not concur with their presented argument.

“In an exceedingly thorough, thoughtful, and well-reasoned opinion, the District Court denied the requested injunction based upon its conclusion that the plaintiffs had not shown that they are likely to succeed on the merits and because they had not shown that they will be irreparably harmed absent the injunction.”

McKee further cited District Court testimony from witness Dr. Scott Leibowitz, a noted expert in the field of gender-identity issues in children and adolescents, in explaining the repercussions of not allowing transgender students the ability to use facilities corresponding to their identity.

“Forcing transgender students to use bathrooms or locker rooms that do not match their gender identity is particularly harmful. It causes ‘severe psychological distress often leading to attempted suicide.’ The result is that those students ‘avoid going to the bathroom by fasting, dehydrating, or otherwise forcing themselves not to use the restroom throughout the day.’ This behavior can lead to medical problems and decreases in academic learning,” McKee said.

U.S. Court of Appeals for the Third Circuit case 17-3113

U.S. District Court for the Eastern District of Pennsylvania case 5:17-cv-01249

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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