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Supreme Court Could Hear Arguments From Students Claiming That School Policies Protecting Transgender Rights Violate Their ‘Bodily Privacy’

By Carolyn Phenicie | March 19, 2019

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A new line of argument has emerged in legal battles surrounding how school districts treat transgender students, an issue that could reach the Supreme Court this fall.

Up to this point, most lawsuits in this area have been brought by transgender students seeking to use bathrooms and locker rooms that match their gender identity rather than their biological sex. The newer lawsuits flip those arguments on their head, alleging that accommodations for transgender students violate the “bodily privacy” of non-transgender students.

The Supreme Court could announce as soon as Friday if it will hear one of them, Doe v. Boyertown School District. Justices have delayed the decision several times; if they decide to take the case, it would be argued in the court’s next term, which starts in October.

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Another case, Parents for Privacy v. Dallas School District, came from Oregon and is currently awaiting a hearing in the Ninth Circuit. Lower courts in both cases sided with the school districts that adopted policies accommodating transgender students.

That’s not to say the first wave of lawsuits, brought by transgender students seeking accommodations, has died down.

The 11th Circuit in Atlanta could soon hear the case of Drew Adams, a transgender boy who was required to use gender-neutral facilities. Other cases are proceeding through state courts in Minnesota and Missouri.

“Trans people are still being discriminated against, so when that happens, cases are going to be brought. I think that in terms of activism and litigation from more conservative corners, that has picked up. They’re no longer just playing defense,” said Scott Skinner-Thompson, an associate law professor at the University of Colorado Boulder.

The Boyertown lawsuit was brought by a former student at a public school in suburban Philadelphia referred to as Joel Doe, who said he was was marked down in gym class for failing to change clothes in a locker room with a transgender student and “eventually felt forced to leave the school entirely,” according to his lawsuit.

Attorneys with the Alliance Defending Freedom, a nonprofit law firm that works to protect religious rights, wrote that Boyertown’s policy violated Doe’s “constitutional right to bodily privacy,” deprived him of equal access to an education guaranteed by Title IX, and violated Pennsylvania privacy laws.

Justices “can and should say that it is not reasonable for a student’s privacy rights to change based on what someone else believes about their own gender,” the attorneys wrote in their petition asking the Supreme Court to take the case.

Arguments that expansion of civil rights protections for one group infringes on another “have not been terribly successful to date,” both in other areas of civil rights generally and in this case specifically, Skinner-Thompson said.

The Third Circuit, which sided with the school district, cited in its decision the availability of single-user facilities for students who chose to use them, and said that the minimal privacy concerns that remain are outweighed by the need to protect transgender students.

Advocates for transgender students argued that the case’s primary argument — that expanding protections for transgender students necessarily comes at the expense of cisgender students, as non-transgender students are called — is both inaccurate based on schools’ experiences and harmful to transgender people broadly.

“Many, many, many school districts have, with dignity [and] privacy, quietly been providing appropriate facilities access to transgender students for years. This has never come up as an issue before,” Eliza Byard, executive director of GLSEN, an advocacy group for LGBT students, told The 74.

She cited a 2015 Media Matters study of big-city school districts in 12 states with transgender civil rights protections that found that no problems had arisen as a result of those accommodations.

If cisgender students are offended, the appropriate response is to make different arrangements for them — not to ban transgender students, which could cause them real harm, Byard said.

There are “no real statistics” about how many schools have implemented policies permitting transgender students to use facilities matching their gender identity, because the public frequently isn’t notified, John Bursch, vice president of appellate advocacy and senior counsel with Alliance Defending Freedom, said via email.

The group has heard from “hundreds” of students and parents since it began working on the issue, he added.

He also took issue with the idea that the plaintiff students were offended.

“We aren’t talking about offense — we are talking about a student’s right to privacy of their own body. Every student, no matter who they are, should be assured that their school will protect their bodily privacy. Students don’t surrender their right to privacy based on other students’ sense of their own gender,” he added.

Attorneys with the ACLU, which is representing a youth organization defending the Boyertown policy, said the lawsuits have a broader goal than protecting cisgender students.

“It’s hard to overstate how harmful and offensive these cases are … If we can be forced out of public restrooms, we can be forced out of public life,” Gabriel Arkles, a staff attorney with the ACLU’s LGBT and HIV Project, said on a call with reporters.

The Boyertown case is the “ideal vehicle” for the Supreme Court to address the legality of restroom and locker room policies, the Alliance Defending Freedom attorneys wrote.

But there is no “conventional” reason for the court to take the case, ACLU attorneys said.

Lower courts haven’t issued split decisions on the issue, and “it’s relatively novel to challenge the mere existence of trans people as a threat to others,” said Ria Tabacco Mar, another attorney with the ACLU’s LGBT and HIV Project.

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