Supreme Court declines to hear challenge to inclusive transgender bathroom policy

"A growing consensus of courts that recognize the inclusion and common humanity of transgender students"

By Matthew Rozsa

Staff Writer

Published May 28, 2019 3:41PM (EDT)

 (AP/Gerry Broome)
(AP/Gerry Broome)

The Supreme Court on Tuesday opted not to hear a case challenging an inclusive transgender bathroom policy in a Pennsylvania school district, effectively allowing that policy to remain in place.

The nation's highest court turned away Doe v. Boyertown Area School Districtthe lawsuit from the conservative Christian nonprofit group Alliance Defending Freedom, according to Politico. The Alliance Defending Freedom has taken up similar cases throughout the country, representing both school districts and students who oppose the rights of transgender students.

"The Boyertown Area School District provides private bathrooms and locker rooms to all students who do not feel comfortable sharing such (spaces) with others, transgender or cisgender," Michael Levin, counsel for the Boyertown Area School District in Pennsylvania, explained in a statement about the court's decision. "The school district’s approach to offer separate and private bathrooms, locker rooms and private spaces to students who desire greater privacy is the common-sense approach that the plaintiffs claim that they want."

The American Civil Liberties Union (ACLU), which supported the transgender students at Boyertown who wanted to be able to use the bathroom that corresponds with their gender identity, expressed a similar thought in response to the Supreme Court's decision.

"Our client Aidan was accepted as the boy he is — this should be every student’s experience. This is a victory for trans students and educators nationwide," the ACLU wrote in a tweet.

The group later added, "Trans students are not a threat. This move means school districts can continue to allow trans students to participate in school activities, and use restrooms and locker rooms, that match their gender."

When the decision in support of transgender rights was first rendered by a Pennsylvania court last year, Judge Theodore McKee announced the three-panel judge had concluded the anonymous group of students from Boyertown who opposed the school district's policy had not demonstrated they were likely win at trial or that they would suffer irreparable harm if the policy remained in place, according to the Morning Call.

While decisions from the Third Circuit Court of Appeals usually take weeks or months to be rendered, this one unique. Judge McKee gave the panel half an hour to decide how it wanted to rule — and it only took 15 minutes.

Ria Tabacco Mar, a senior staff attorney with the American Civil Liberties Union’s LGBT & HIV Project, told The Morning Call after the verdict that "the court is joining a growing consensus of courts that recognize the inclusion and common humanity of transgender students."

She added, "But the solution is exactly what the school has done here — to make private arrangements available to all students and not to banish transgender students and send the message that who they are is unacceptable."

One of the students who participated in the lawsuit claimed she did so, because she felt uncomfortable finding a boy in the girls' bathroom.

"Instead of listening to my concerns, they made me feel like I was the problem for feeling uncomfortable, unsafe and vulnerable with a boy in the bathroom," Alexis Lightcap said at the time.

By Matthew Rozsa

Matthew Rozsa is a staff writer at Salon. He received a Master's Degree in History from Rutgers-Newark in 2012 and was awarded a science journalism fellowship from the Metcalf Institute in 2022.

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