The American Civil Liberties Union has filed a brief asking the Supreme Court to refuse to take up a challenge to a Pennsylvania school district’s policy allowing transgender people to use the restroom or locker room that matches their gender identity.
The case was brought by a group of cisgender students and their parents against the Boyertown Area School District in the Philadelphia exurbs who oppose the school’s transgender policy.
The policy was adopted to accommodate transgender students within the school and also to comply with guidance from the Obama administration recommending that transgender students be treated according to their gender identity when it comes to restroom use, school records, and the use of personal pronouns.
The cisgender students claim that their privacy is being violated and they are being subjected to sexual harassment merely by having to share facilities with transgender students — whose gender identity they do not recognize.
Shortly after the lawsuit was filed in 2017, the Pennsylvania Youth Congress, a coalition of LGBTQ youth leaders and youth organizations, enlisted the help of the ACLU and ACLU of Pennsylvania and intervened in the case in order to defend the district’s policy.
Former Boyertown graduate Aidan DeStefano, a transgender man, also intervened in the case. DeStefano wrote in an essay posted on the ACLU’s website that the transgender-friendly policies at his school helped make him feel like part of the community, and allowed him to join the boys’ cross-country team, get better grades, and make friends who accepted him as a boy.
“I was so shocked and angry when I found out that other students were suing the school to stop the policy of allowing kids like me from using a bathroom that matches our gender identity,” he writes. “I’m lucky to have a supportive family and friends, but most transgender kids I know don’t. What happens at school can make or break their world. And being allowed to use the bathrooms we choose is a way to show support and make us feel recognized for who we are.”
In May 2018, a three-judge panel on the 3rd U.S. Circuit Court of Appeals refused to issue an injunction blocking Boyertown’s policy, thus allowing transgender students to have their gender identity recognized at school. The cisgender students, and their lawyers with Alliance Defending Freedom, appealed the decision to the Supreme Court in November.
In its brief addressed to the high court, the ACLU argues that the justice should vote not to take up the cisgender students’ challenge to the policy. The ACLU argues that the presence of transgender students in restrooms and locker rooms does not constitute a threat to other students, and that forcing transgender students to use separate facilities “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.”
The court has been asked to decide whether the Constitution or Title IX explicitly forbids school districts from allowing transgender students to use restrooms and locker rooms matching their gender identity.
“Courts have recognized that transgender students are not a threat to other students and that it is blocking transgender students from using facilities consistent with their gender identity, not allowing them to do so, that would cause harm,” the ACLU said in a statement.
“[T]he question before the court right now is only about whether or not school districts can have policies that support transgender students in this way, not whether or not school districts are required to,” the statement continues. “Because there is no controversy in the courts over this question, and because there is good reason to allow local administrators to act to prevent and eliminate discrimination against vulnerable students, the court should deny review.”
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