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Supreme Court Declines to Hear Challenge to School’s Transgender Bathroom Policy

Scott Slayton | Contributor | Updated: May 30, 2019
Supreme Court Declines to Hear Challenge to School’s Transgender Bathroom Policy

Supreme Court Declines to Hear Challenge to School’s Transgender Bathroom Policy

The Supreme Court decided not to hear a case involving a challenge to a Pennsylvania School’s District’s policy of allowing students to use the restroom which matches their gender identity rather than their biological sex. Their refusal to hear the case upholds to lower court rulings which favored the school district.

The case started in 2016 when the Boyerton Area School District allowed students who identified as transgender to use the bathroom of their choice. The Alliance Defending Freedom, who represented the students filing suit against the school district, claims that some male students did not know about the policy changed until “they were undressing in their locker room and discovered that a female student was changing clothes with them. They further allege that the students went to school officials “who told them they should just ‘tolerate it’ and make it as natural as possible.’”

A female student did not know about the policy change until she saw a boy in the girls’ restroom. She ran out of the restroom, but according to the ADF, “school officials refused to listen to her privacy concerns either.”

Scholars believed there were two issues at play in the case. First, “Given students’ constitutionally protected privacy interest in their partially clothed bodies, whether a public school has a compelling interest in authorizing students who believe themselves to be members of the opposite sex to use locker rooms and restrooms reserved exclusively for the opposite sex, and whether such a policy is narrowly tailored.” The second issue is “Whether the Respondents’ policy constructively denies access to locker room and restroom facilities under Title IX ‘on the basis of sex.’”

The ACLU hailed the Court’s refusal to hear the case. Senior Staff Attorney with the ACLU LGBT & HIV project Ria Tabacco Mar said, “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.”

ADF Senior Counsel and Vice President of Appellate Advocacy Job Bursch took issue with the court’s decision. He said, “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.”

The ADF hopes the Supreme Court may other cases regarding this issue in the near future.

Scott Slayton writes at “One Degree to Another.”

Photo courtesy: Juan Marin/Unsplash

Supreme Court Declines to Hear Challenge to School’s Transgender Bathroom Policy