Alliance Defending Freedom submitted the 32-page petition for certiorari before the court on Monday, asserting Boyertown Area School District’s pro-trans bathroom policy violates the right to privacy of its students — a notion rebuffed by a trial court in Pennsylvania and the U.S. Third Circuit Court of Appeals.
“Forcing a teenager to share a locker room or restroom with a member of the opposite sex can cause embarrassment and distress, particularly for students who have been victims of sexual assault,” the petition states.
The petition asserts the Third Circuit erroneously decided the school policy is allowed despite Title IX of the Education Amendment of 1972, which bars sex discrimination in education.
Although the consensus among the courts is that law prohibits discrimination against transgender students, Alliance Defending Freedom draws on that statute to argue students shouldn’t be forced to share facilities with transgender students.
“The claim is based on petitioners’ own sex, which dictates whom they consent to be with when undressing in a school privacy facility,” the petition says. “And the claim is based on sex in a more general way because the school’s permission to use a locker room or restroom depends on the sex designation of that facility. Either way, the claim falls within Title IX’s plain language, contrary to the Third Circuit’s conclusion.”
The questions Alliance Defending Freedom presents before the court are 1) Whether a public school has a compelling interest in allowing transgender kids to use the restroom consistent with their gender identity and 2) Whether the school policy “constructively denies” access to locker room and bathroom under Title IX.
Alliance Defending Freedom has had little success in this lawsuit as it has moved through lower courts. After filing the complaint and a request for a preliminary injunction in March 2017 before trial court, U.S. District Judge Edward Smith, an Obama appointee, denied the request in August of that year.
When the case came before a three-judge panel on the Third Circuit in May 2018, the judges issued a ruling within one hour of oral arguments rejecting Alliance Defending Freedom’s arguments and upholding Boyertown’s policy.
Upon a request for a rehearing “en banc,” or before the full court, the judges agreed to vacate their decision and issue a new one, but the newer decision was only slightly scaled back. It eliminated the conclusion the injunction Alliance Defending Freedom requested was unlawful under Title IX, but still reached the same general ruling against the anti-LGBT legal group.
The American Civil Liberties Union has intervened in the case and represents Aidan DeStefano, a transgender student at Boyertown Area Senior High, as well as the Pennsylvania Youth Congress, a coalition of LGBTQ youth leaders and youth organizations, including the Boyertown Gay-Straight Alliance.
Ria Tabacco Mar, senior staff attorney for the ACLU, said the arguments Alliance Defending Freedom presents are “offensive and not supported by the evidence in Boyertown or schools around the country.”
“Boyertown schools chose to be inclusive and welcoming of transgender students two years ago,” Mar saids. “Now anti-LGBTQ extremists are asking the Supreme Court to rule that local school districts like Boyertown are not only wrong, but prohibited by the Constitution from doing the right thing.”
Mar added the petition is “part of a larger pattern of attacks against the transgender community, including from the Trump administration.”
“But transgender people won’t be erased,” Mar said. “We will continue to fight for transgender students with everything that we have — including at the Supreme Court.”
It remains to be seen what action the Supreme Court will take on the petition. Justices are beginning their new term with U.S. Associate Justice Brett Kavanaugh newly seated on the bench. It takes a vote of at least four justices to grant certiorari, or agree to take up a case.
The petition is one of several before the Supreme Court calling on justices to undermine LGBT rights established by lower courts. One other petition seeks a First Amendment right to refuse to make wedding cake for same-sex couples. Another seeks a ruling that would exclude transgender people from employment protections under Title VII of the Civil Rights Act of 1964, and another seeks the same for lesbian, gay and bisexual people.