SCOTUS Lets Transgender Bathroom Ruling Stand

The U.S. Supreme Court let stand an appeals court decision allowing transgender students to use boys or girls bathrooms at a Pennsylvania high school.

In Doe v. Boyertown Area School District, the U.S. Third Circuit Court of Appeals said transgender students can use bathrooms or locker rooms that correspond with their gender identity. It is the most recent transgender case to make it to the highest court in the land. The Supreme Court declined to decide the issues in the case, however, leaving the debate for another day.

For now, it's up to the transgender students to decide which facilities to use at Boyertown Area Senior High.

Right to Privacy

The case started in 2017 when six former and current high school students sued over the transgender policy of the Boyertown Area School District, which serves about 2,000 high schoolers. The plaintiffs complained the policy violated their right to privacy and subjected them to sexual harassment.

Under the policy, three transgender students were allowed to use facilities designed to accommodate their gender identity and avoid possible problems with other students. The district removed group showers in the locker rooms and replaced them with individual stalls. The district also added multi-user bathrooms with individual stalls.

Judge Edward Smith dismissed the plaintiffs' complaint, saying they did not show how the policy violated their rights. The Third Circuit agreed and affirmed. The Supreme Court issued a one-line order in declining to review the decision, but it had nationwide impact as the debate over transgender rights goes on. "We hope the Supreme Court will eventually weigh in to protect students' constitutional right to bodily privacy," said Christiana Holcomb, who represented the plaintiffs. "All schools," she added, "should be providing compassionate support for those dealing with gender dysphoria, but they should do it in a way that protects the privacy of all students."

'Exceptionally Well Reasoned'

The Third Circuit said the trial court decision was "exceptionally well reasoned." The appeals panel announced its decision less than 20 minutes after hearing arguments.

Judge Theodore McKee said at the time that the plaintiffs failed to show they were irreparably harmed by the policy, given the district had accommodated those who did not feel comfortable sharing facilities with transgender teens. In a formal opinion later, the justices defined the difference between "sex" and "gender." Sex is determined at birth, they said. "Gender" is a 'broader societal construct' that encompasses how a 'society defines what male or female is within a certain cultural context,'" McKee wrote. "A person's gender identity is their subjective, deep-core sense of self as being a particular gender."

That made all the difference, as the court said people can be born one sex yet identify with another gender. "Forcing transgender students to use bathrooms or locker rooms that do not match their gender identify is particularly harmful," the appeals court said.

Related Resources:

• Supreme Court Won't Overturn School Bathroom Policy Favorable to Transgender Students (New York Intelligencer)
• NFL Concussions, Settlement and Litigation Funding - Is It Over or What? (FindLaw's U.S. Third Circuit Blog)
• United States Third Circuit Cases (FindLaw's Cases & Codes)