June 25, 2018 at 12:46 pm PST | by Jon Davidson
Rejecting the Scarlett ‘T’

Jon W. Davidson has been a leading LGBT legal rights advocate and constitutional scholar for more than 30 years. He recently stepped down as the national legal director of Lambda Legal.

Editor’s note: California has built a history of protecting transgender students through non-discrimination and specific laws and policies. And while Education Sec. Betsy DeVos has diligently worked at rolling back such protections, the courts have ruled in favor of the students. Jon Davidson explains the most recent ruling. 

Notwithstanding repeated attempts by the Trump administration to backpedal on civil rights progress for transgender Americans, the federal courts once again have ridden to the rescue. On June 18th, the Third Circuit Court of Appeals issued its decision in Doe v. Boyertown Area School District becoming the second federal appellate court to expressly hold that transgender students are entitled to use public school restrooms that are consistent with their gender identity. 

The decision is notable for its powerful rejection of right-wing attempts to sow misunderstanding and fear about those who are transgender.

The case was brought by the well-funded, anti-LGBTQ organization Alliance Defending Freedom (ADF).  ADF is representing several students and their parents who claim that these students’ right to privacy is being violated by a Pennsylvania school district policy allowing transgender students to use single-sex facilities that match the gender with which they identify. ADF sought to have the policy enjoined while the lawsuit proceeds. After the ACLU intervened on behalf of a student and an LGBTQ youth organization, a federal district court rejected ADF’s request and it appealed. The Third Circuit unanimously ruled that the lower court correctly rebuffed ADF.

Relying on expert testimony on gender-identity issues, the appellate court explained that policies that exclude transgender people from facilities that are consistent with their deep-rooted sense of gender adversely affect “the physical and mental health, safety, and well-being of transgender individuals.” Such exclusionary policies exacerbate the risk of, “anxiety and depression, low self-esteem, engaging in self-injurious behaviors, suicide, substance use, homelessness and eating disorders,” among other harms. Indeed, as the court noted, the rate of suicide attempts by transgender individuals is nine times the general population. But, as the expert testified, when transgender students are respected and allowed to use facilities that conform to their gender identity, those students “reflect the same healthy psychological profile as their peers.”

The appellate court questioned whether merely allowing transgender students to share restrooms and locker rooms with students who are not transgender violates anyone’s rights to privacy. After all, it is common for individuals to be partially undressed in such facilities and a transgender student’s presence there “provides no more of a risk to students’ privacy rights than the presence of an overly curious student [who is not transgender] who decides to sneak glances at his or her classmates performing their bodily functions.”

But even if there were an intrusion on privacy rights, the Third Circuit held that it was amply justified by the government’s compelling interest in protecting transgender students from the harms of exclusion. The risk to them, the appellate court explained, “cannot be overstated—indeed, it can be life-threatening.” Inclusive policies not only protect transgender young people, the Court added; they benefit all students by fostering “an environment of inclusivity, acceptance, and tolerance” that creates a better learning environment, “reduce[s] prejudices and promote[s] diverse relationships which later benefits students in the workplace and in their communities.”

The Boyertown school district properly protected all students who desired additional privacy by replacing “gang showers” with single-user showers with privacy curtains behind which students can undress and dress. In addition, the school district maintained eight single-user restrooms available to all students desiring greater privacy.

The appellate court condemned ADF’s assertion that only transgender students should be required to use those restrooms, as some schools have done, as a position that would “very publicly brand all transgender students with a scarlet ‘T.’” Trans students should “not have to endure that as a price of attending their public school,” the court held.

In reaching its decision, the Third Circuit relied on the Seventh Circuit’s ruling last year in Whitaker v. Kenosha Unified School District No. 1 Board of Education, which reached similar conclusions and was later resolved when that school district agreed to pay $800,000 in settlement. The court also noted that the First, Sixth, Ninth, and Eleventh Circuits have held that discrimination against transgender individuals is a form of sex discrimination. Numerous federal district courts have agreed that transgender students, employees, and tenants cannot be shunned in the ways the ADFs of the world seek.

Unfortunately, the Trump administration continues to align itself with such anti-trans efforts. The Department of Education has withdrawn Obama administration guidance that urged schools to follow the sorts of policies the Boyertown district adopted. Likewise, the federal Bureau of Prisons in May rolled back Obama era rules designed to protect the safety of transgender inmates that had allowed them to be housed and use restrooms that match their gender identity. The Department of Justice also continues its efforts (thus far, in vain) to justify the President’s Executive Order barring transgender individuals from military service.

With Congress refusing to intercede, we have only the courts to protect us. Thank goodness they continue to prove up to the task.

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