Boyertown, Pennsylvania, US – On Tuesday, May 28, the United States Supreme Court declined to hear an appeal in the case of Doe v. Boyertown.
This means that last year’s unanimous decision by the U.S. 3rd Circuit Court of Appeals will stand. The 3rd Circuit Court had refused to grant an injunction restraining the Boyertown Area School District from practicing a policy that allows students to access locker rooms and restrooms based on declared gender identity, rather than biological sex.
Not only is the Pennsylvania school district free and clear to continue the gender identity policy, but Ria Tabacco Mar, an attorney with the American Civil Liberties Union (ACLU), expects school districts around the country to follow suit, and establish gender identity policies of their own.
Ms. Mar lauds the Supreme Court’s decision not to hear the appeal of the students concerned for their bodily privacy as “an enormous victory for transgender students across the country.”
Several students and their parents had filed for an injunction after the school began governing use of locker room and restroom facilities by gender identity for the 2016-2017 school year. The students claimed the policy violated their constitutional right to privacy under the Fourteenth Amendment; their right of access to educational opportunities, programs, benefits, and activities under Title IX by creating a hostile environment; and their Pennsylvania common law right of privacy preventing intrusion upon their seclusion while using bathrooms and locker rooms.
A male student told the lower court that he was “shocked and somewhat humiliated” to discover a biologically female student in the boys’ locker room. He moved several feet away where he was no longer visible to her, and put his clothes back on.
A female student described to the court her fright when she spotted a male student in the girls’ restroom. She fled the area and immediately reported the incident to school staff. She felt too “uncomfortable” to use the restroom again after the incident. Gaps around doors allowed the person using the toilet to be visible to those outside the stall, she testified, and stalls did not provide the privacy she needed to contend with menstruation.
Another male student was partially undressed in the boys’ locker room when a tap on the shoulder by a fellow male student alerted him to the presence of a biologically female student. He said she was wearing a sports bra and shorts at the time. “Embarrassed and humiliated,” he quickly got dressed.
The boys in the locker room had jeered the girl to the sound of laughter: “You don’t belong here, you b—-,” and “If you don’t have a d—, get the f— out!”
“If you have a d—, raise your hand,” one boy said, and boys responded by raising their hands.
“The whole thing is screwed up,” a student texted his parents right after the incident. The texts were presented to the court. “She doesn’t even look like a guy. She has short purple hair but was in short shorts and had breasts.”
Several male students had complained to school administration about the girl in their locker room. Administrators told the boys they would need to learn to tolerate and “make it as natural” as possible, or accept alternate accommodations where they could each change in private. At least one boy quit changing for gym due to the obstacles, and received only partial credit for gym class. He “eventually felt forced to leave the school entirely,” the petition states.
The boys testified that they would not mind changing with gay boys, boys who dress like stereotypical girls, or boys who made hormonal or surgical modifications to their bodies to appear more feminine. They insisted that they had the right to use the boys’ facilities, but should be able to maintain privacy from individuals of the opposite biological sex while doing so.
Similarly, the girls who testified said they did not mind changing with lesbians or biological girls who present as masculine, including girls who have a surgically-constructed penis.
The ACLU and the ACLU of Pennsylvania filed a motion supporting transgender student Aidan DeStefano and Pennsylvania Youth Congress, an LGBTQ youth organization, who fought to keep the policy intact.
The District Court had ruled that the plaintiffs did not show that they are likely to succeed on the merits of the case, and had not proven that they would be irreparably harmed if the injunction was not granted.
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Petition for certiorari denied on May 28, 2019
Joel DOE, a minor, BY AND THROUGH his guardians, John DOE and Jane Doe; Mary Smith; Jack Jones, a Minor, by and through his parents, John Jones and Jane Jones; and Macy Roe, Plaintiffs, v. BOYERTOWN AREA SCHOOL DISTRICT; Dr. Richard Faidley, in his official capacity as superintendent of the Boyertown Area School District; Dr. Brett Cooper, in his official capacity as principal; and Dr. E. Wayne Foley, in his official capacity as assistant principal, Defendants, and Pennsylvania Youth Congress Foundation, Intervenor-Defendant.
Supreme Court of the United States
Docketed: November 21, 2018