On Tuesday the Supreme Court dodged the issue of allowing transgender students in school to use bathrooms that don’t match their biological sex, declining to hear a case involving a Pennsylvania school district policy that permits those students to do so.
The court denied a writ of certiorari in the case of Doe v. Boyertown Area School District; the plaintiffs are students, represented by the Alliance Defending Freedom (ADF), who believe the school district policy violates their privacy rights and amounts to sexual harassment. If the court had heard the case and decided the students were indeed being sexually harassed by having students of the opposite sex in their bathrooms, that would constitute a violation of Title IX.
ScotusBlog summed up the case this way:
Whether, given students’ constitutionally protected privacy interest in their partially clothed bodies, a public school has a compelling interest in authorizing students who believe themselves to be members of the opposite sex to use locker rooms and restrooms reserved exclusively for the opposite sex, and whether such a policy is narrowly tailored; and (2) whether the Boyertown policy constructively denies access to locker room and restroom facilities under Title IX “on the basis of sex.”
ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch responded to the Supreme Court’s decision not to hear the case, asserting, “Students struggling with their beliefs about gender need compassionate support, but sound reasons based on common sense have always existed for schools to separate male and female teenagers in showers, restrooms, and locker rooms.”
In May 2018, the U.S. 3rd Circuit Court of Appeals ruled in favor of the district’s policy. One student who was a senior at the high school, Alexis Lightcap, said she had encountered a boy in the girl’s restroom and was frightened. ADF reports, “Alexis was determined to make her voice heard. She joined a lawsuit against Boyertown School District and later publicly identified herself as one of the plaintiffs. Another student in the district had already challenged the policy in court after he realized that a biological female was standing in the boys’ locker room as he changed down to his underwear. School administrators had brushed aside his privacy concerns, too, telling him to try and act 'natural' after he raised the issue.”
Lightcap wrote an op-ed in which she stated:
I come from a broken home. As a child, I struggled for a long time through a broken foster care system. Eventually, a good, loving family adopted me, but all those previous experiences made me a shy and quiet little girl who didn't have a voice of my own.
My adoptive parents worked hard to help me find that voice. They taught me to think for myself, and speak for myself, and that what I thought mattered. That came in handy when we moved to Boyertown, where black children like me were pretty few and far between, but racial slurs were not.
So, it's not like I don't know what it's like to be different, or can't understand someone who has a hard time speaking up for their rights. But that doesn't make me any more comfortable having my privacy invaded or knowing the bathroom door is open to anyone who wants to come in.
As Politico reported, after the SCOTUS decision on Tuesday, the ACLU, which represents Aidan DeStefano, a student at Boyertown Area Senior High who is transgender, tweeted: “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."