May 28, 2019 at 10:49 am EDT | by Chris Johnson
Supreme Court rejects challenge to Pa. school’s pro-trans bathroom policy
The Supreme Court has declined to hear a case challenging a Pennsylvania’s school pro-trans bathroom policy. (Blade file photo by Michael Key)

The U.S. Supreme Court has announced it won’t hear a case challenging a Pennsylvania school district’s pro-trans bathroom policy, averting a decision that could have had implications on protections for transgender students nationwide.

In an order list Tuesday, the Supreme Court indicated it has denied certiorari in the case of Doe v. Boyertown. That means the petition for certiorari — which has been pending before the Supreme Court since November 2018 — obtained fewer than the four votes needed from justices for review.

The anti-LGBT legal group Alliance Defending Freedom filed the case against Boyertown Area School District, which initiated a policy in 2016 allowing transgender students to use restrooms and locker rooms consistent with their gender identity.

The case was initially filed on behalf of an anonymous student identified by the pseudonym Joel Doe, asserting Boyertown’s policy is a violation of Doe’s privacy, as well as other anonymous students. According to Alliance Defending Freedom, after parents learned about the Boyertown policy, school officials told male students that their alternative was to stop using the boys’ locker room.

The harm caused to one of the anonymous students in the complaint, Mary Smith, was having to witness a transgender student wash her hands in the girl’s room — an incident that prompted Smith to complain to Wayne Foley, an assistant principal at her school.

“In March 2017, she entered a girls’ bathroom at the high school and saw a male student washing his hands in the sink,” the complaint says. “After immediately experiencing shock, confusion, and embarrassment, she went to report the incident to the school office. She eventually was able to report the incident to Dr. Foley, and during her conversation with him she learned for the first time that the school was permitting members of the opposite sex to use the girls’ bathrooms.”

The student behind the complaint later publicly revealed herself contemporaneously with her high school graduation by her true name, Alexis Lightcap.

At a time when pro-trans groups are arguing the Fourteenth Amendments and Title IX of the Education Amendments of 1972 ensure transgender kids have access to school restrooms consistent with their gender identity, ADF has taken the opposite approach. The legal firm claims the pro-trans policy violates students’ rights to privacy under the U.S. Constitution and Title IX, which allows for sex-segregated bathroom facilities, meaning transgender students must use the bathroom consistent with their biological sex.

The case has had no success in the courts thus far. U.S. District Judge Edward Smith in Pennsylvania, an Obama appointee, refused to grant a preliminary injunction barring enforcement of the Boyertown policy. A three-judge panel on the U.S. Third Circuit Court of Appeals upheld that decision, asserting forcing transgender students to use separate facilities would “publicly brand all transgender students with a scarlet ‘T.’

John Bursch, ADF’s senior counsel and vice president of appellate advocacy, in a statement acknowledged yet another defeat, this time before the Supreme Court, but was hopeful another opportunity for review would come around.

“No student’s recognized right to bodily privacy should be made contingent on what other students believe about their own gender,” Bursch said. “Because the 3rd Circuit’s decision made a mess of bodily privacy and Title IX principles, we believe the Supreme Court should have reviewed it. But we hope the court will take up a similar case in the future to bring much needed clarity to how the lower courts should handle violations of well-established student privacy rights.”

The Supreme Court has rejected the Boyertown decision shortly after it granted certiorari in the case of Harris Funeral Homes v. EEOC, which will determine whether anti-transgender discrimination is a form of sex discrimination under current law, as well as cases seeking to clarify whether federal laws against sex discrimination cover sexual orientation discrimination. Although these cases don’t directly relate to bathroom access, many of the legal principles are the same and bathroom use is likely to come up during the review of the cases.

The American Civil Liberties Union has intervened in the case and represents the Pennsylvania Youth Congress, a coalition of LGBT youth leaders and youth organizations seeking to defend Boyertown’s policy.

Ria Tabacco Mar, senior staff attorney with the ACLU LGBT & HIV Project, said in a statement the denial of certiorari “is an enormous victory for transgender students across the country.”

“Boyertown’s schools chose to be inclusive and welcoming of transgender students in 2016, a decision the courts have affirmed again and again,” Mar said. “This lawsuit sought to reverse that hard-won progress by excluding transgender students from school facilities that other students use. That would have increased the stigma and discrimination that transgender students already face.”

Aidan DeStefano, who’s transgender and a recent graduate of Boyertown High, also commended the Supreme Court decision to refuse to hear the case.

“By the time I graduated high school, I was using the boys’ bathroom and participating on the boys’ cross country team,” DeStefano said. “I felt like I belonged and had the confidence I needed to continue with my education. I’m glad the Supreme Court is allowing schools like mine to continue supporting transgender students.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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