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Cisgender Students Lose Round in Bathroom Dispute

BY ARTHUR S. LEONARD | Pennsylvania federal judge has denied efforts by cisgender school students and their parents for a preliminary injunction in their lawsuit against the Boyertown Area School District for its unwritten policy of allowing transgender students to use bathroom and locker room facilities consistent with their gender identity. The decision, issued ahead of the new school year in mid-August, was explained in a lengthy August 25 opinion by Judge Edward G. Smith, who sits on the Eastern District of Pennsylvania court in Easton.

Alliance Defending Freedom (ADF) — a non-profit law firm that litigates anti-LGBTQ cases nationwide and has filed similar lawsuits against other school districts — represents the plaintiffs in arguing that constitutional and common law privacy rights of the students are violated by the school district’s policy.

In addition to local attorneys representing the school district, attorneys from the American Civil Liberties Union’s LGBT Rights Project and the ACLU of Pennsylvania with cooperating attorneys from Cozen O’Connor intervened on its behalf.

Federal judge in Pennsylvania declines to halt trans students’ facilities access

The Boyerstown case presents a mirror image of lawsuits brought by transgender teens seeking the right to use bathroom and changing facilities at their high schools consistent with their gender identity. In both kinds of cases, plaintiffs present testimony about the emotional and physical harm they have suffered because their school’s policy interferes with their ability to use a convenient, non-stigmatizing restroom when they need it.

Here, cisgender students asserted they were so traumatized at the prospect of encountering a “student of the other sex” — as they insist on calling trans students — in the restroom or locker room that they avoid using the facilities altogether during the school day and the fear of such encounters haunts them.

The court rejected the underlying premise, because the Boyers- town high school has provided numerous single-user facilities and alternative locations that would accommodate the plaintiffs’ concerns and has made physical alterations in the common facilities to enhance individuals’ privacy. The court’s decision took account of the facilities that would be available to students in the new school year.

This lawsuit points to several instances during the fall of 2016 when plaintiffs claim to have been startled, abashed, and disturbed to discover students whom they considered to be of the opposite sex in the locker room or restroom, leading them to complain to administrators. The transgender students were in these facilities after having obtained permission from school administrators, who had determined the students had sufficiently transitioned to make their choice appropriate.

The evidence presented to the court was that transgender students still in the process of transitioning in their gender presentation generally preferred using the school’s single-user facilities. Because surgical transition is not available under established standards of care before age 18, none of the transgender students at the high school had genital surgery, so their transitions were based on puberty-blocking drugs, hormones, grooming, and dress. One suspects that parents particularly objected to the presence of trans girls who still had male genitals in the female facilities, but there were no allegations that any trans girl had exposed male genitals to the view of others there.

The objections made to the school administrators came months after they had received the “Dear Colleague” letter sent out by the Obama administration’s Departments of Education and Justice in May 2016, which advised that Title IX required public schools to accommodate trans students by allowing them to use restrooms consistent with their gender identity and presentation. The administrators, who did not seek authorization from the school board on the issue, treated that letter as “the law of the land” and informally extended approval on a case-by-case basis to trans students seeking permission to use appropriate facilities. Their approach was never formalized in writing or announced to the school community.

After the issue blew up last year, the Boyerstown board of education voted to back up the administrators, but declined to issue a formal policy. The board stuck to that policy even after the new Trump administration withdrew the Obama statement on Title IX’s requirements.

The complaint asserted claims under the 14th Amendment for a substantive due process violation of the students’ privacy; under Title IX for hostile environment sex discrimination; and under Pennsylvania privacy law.

Judge Smith’s opinion identified the threshold issue in deciding a motion for preliminary injunction as whether to preserve the status quo in school policy or to upset the status quo by requiring trans students to restrict themselves to single-user facilities or those consistent with their sex as identified at birth. There is a strong bias in considering preliminary injunctions in favor of preserving the status quo, so the plaintiffs had a heavy burden to persuade the court they were likely to prevail on the merits of their claim and that the status quo inflicted real harm on them that outweighs any harm from halting the policy. Smith concluded the plaintiffs had failed to make their case.

The school’s alteration and expansion of its facilities significantly undermined the privacy arguments, he found, and he easily rejected the contention that the possibility of encountering one of about half a dozen trans students in a high school with well over a thousand students creates a “hostile environment” for cisgender students. The court also noted that the common law privacy precedents concerned situations where defendants had physically invaded a plaintiff’s private space.

After a detailed review of expert testimony on gender identity and transitioning, Smith also rejected the plaintiffs’ argument that this case is about boys invading girls’ facilities or vice versa. The tone and detail of the opinion reflect the considerable progress made in educating courts and the public about these issues.

Regarding the plaintiffs’ likelihood of prevailing on the merits, Smith pointed to the most definitive appellate ruling so far on the contested transgender bathroom issue, a recent decision by the Chicago-based Seventh Circuit Court of Appeals in favor of Ash Whitaker, a trans student seeking the right to use bathroom facilities consistent with his gender identity at his Kenosha, Wisconsin, high school. No other court of appeals has ruled on the merits of this issue.

Because ADF is on a crusade to defeat transgender-friendly policies, it will most likely seek to appeal Smith’s denial of a preliminary injunction to the Third Circuit Court of Appeals in Philadelphia. But if the Supreme Court grants the Kenosha school district’s petition for review in the Whitaker case, as seems likely, the underlying legal issues may be decided in the current term that runs until next June.

Smith, a Republican, was nominated to the district court by President Barack Obama in 2013.

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