LGBT advocates are praising a recent order by a three-judge panel of the Third Circuit Court of Appeals that allows trans students at Boyertown Area Senior High School to access restrooms, locker rooms and other facilities consistent with their gender identity.
“This case has always been about ensuring a fair and equal educational environment for transgender students,” said Mary Catherine Roper, deputy legal director of the ACLU of Pennsylvania, which was involved in defending the case. “We are grateful that the court understood that, and we are especially grateful to our clients who bravely stood up in defense of the school’s practice.”
The circuit judges upheld U.S. District Judge Edward G. Smith’s denial of a preliminary injunction sought by four current students and two former students who oppose sharing restrooms and locker rooms with trans students. Smith denied their request last August.
An injunction would have suspended a trans-friendly policy that has been in place in the Boyertown Area School District since 2016. The plaintiffs maintained an injunction was necessary due to alleged privacy intrusions and sexual harassment caused by the district’s trans-friendly policy.
“Plaintiffs have not demonstrated a likelihood of success on the merits and they have not established that they will be irreparably harmed if their [preliminary-injunction request] is denied,” the appeals panel wrote.
In his ruling, Smith cited extensive remodeling at Boyertown High that provides “enhanced” privacy for students — such as multiple single-user restrooms, alternate locker rooms and curtained areas and individual stalls in common areas. The judge also cited a lack of evidence that sexual harassment and/or privacy violations were occurring due to the district’s trans-friendly policy.
Boyertown is a borough in Berks County about 48 miles northwest of Philadelphia. Some 1,650 students attend the high school.
The ACLU of Pennsylvania and the ACLU’s LGBT and HIV Project represent the Pennsylvania Youth Congress, a statewide LGBTQ youth-advocacy organization that’s an intervenor in the case.
“Trans students must be ensured basic dignity in school in order to learn,” said Jason Landau Goodman, executive director of the Pennsylvania Youth Congress, in a statement. “This court has allowed the school to continue to ensure that trans students are free from discrimination at Boyertown,” he added.
Aidan M. DeStefano attended Boyertown High as an openly trans student when the six students filed suit in 2017. He submitted a sworn declaration setting forth his reasons for supporting the district’s trans-friendly access policy. He stated, in part:
“[In 2016], I started using the male facilities at [the high school]. That feels so good. I am finally ‘one of the guys,’ something I have waited for my whole life. The other students are really supportive. In fact, I was elected to the homecoming court by my fellow students. And when I ran [track] with the guys for senior night, it felt great to hear the cheers from my male teammates. Being able to be my true self is more important than I can describe. I am on track to make the honor roll for the third marking period in a row, something I have never done before because I was too distracted and stressed. I have no trouble in the bathrooms or locker room. Sometimes someone stares, but usually I am treated just like all of the other guys. No one harasses me or questions me. The support from the students is really amazing.”
DeStefano also addressed the unintrusive nature of the district’s policy. “There is never any reason for a student to undress in front of other students. The bathrooms, of course, have stalls with doors that lock. And in the locker rooms, there are also toilet stalls with doors that lock, and in the shower area, there are changing cubicles with curtains you can pull across. No student has to watch other students changing, or be seen by other students while changing. Both the girls’ and the boys’ showers and locker rooms have private areas where people can change, as well as private showers.”
DeStefano graduated last June and attended the May 25 oral arguments. After the proceeding, he said in an issued statement that transgender students “want what everyone else wants, to be accepted for who we are. Reversing the practices that have allowed me and other trans kids to thrive at school would have been devastating.”
Randall L. Wenger, an attorney for the six students challenging the district’s policy, said no student should be forced into an “intimate setting” with someone of the opposite sex. The district “could have crafted policies that respect the privacy concerns of all students and are also sensitive to the needs of individual students. Instead, the district failed to fulfill its responsibility and harmed students rightfully concerned about their bodily privacy. The district must correct its policy — not only for our clients, but for all students within the [school district].”
Wenger said he intends to seek a rehearing by a group of 13 judges on the Third Circuit. The group will be composed of 12 active judges plus Nygaard, who is a senior judge. But Wenger’s petition for a rehearing won’t be filed until the three-judge panel issues a longer opinion explaining its May 25 order.
Alexis Lightcap, one of the six students who filed suit, said in a statement: “Today’s ruling was very disappointing, and made me feel — again — like my voice was not heard. Every student’s privacy should be protected.”
The Alliance Defending Freedom, a conservative Christian group, also represents the plaintiffs. In a statement issued after the May 25 order, ADF indicated the Boyertown case eventually may be appealed to the U.S. Supreme Court.
“The Supreme Court has already spoken,” said Christiana Holcomb, ADF legal counsel. “The real differences between men and women mean that privacy must be protected where it really counts, and that certainly includes high-school locker rooms and restrooms. This decision is out of step with longstanding legal protection for privacy. We will continue advocating for these young students.”
The school district said it is “gratified” by the court’s ruling, one that supports Boyertown’s policy to “access and accomodation.”
“It is the hope of the Boyertown Area School District board and administration that this decision, which affirmed the lower court’s ruling, will be viewed as validation of the thoughtful and compassionate actions that have been taken to ensure a welcoming, quality educational environment for all of our students,” the district said in a statement. While we have always recognized the right of the plaintiffs to file their challenge, today we acknowledge and applaud all those that have supported our efforts, including the work of our legal team, and look forward to the day when this case can be marked ‘closed.’”