PHILADELPHIA, Pa. — An appeals court in Pennsylvania has declined to give a en banc review of a ruling upholding a lower court decision in favor of a school district’s policy that permitted a girl who identifies as a boy to use the boys’ locker room, and a boy who identifies as a girl to use the girls’ restroom.
The 12 judges of the Third Circuit Court of Appeals voted 8-4 not to revisit the decision issued last month by a smaller three-judge panel. The four that dissented said that while they agreed that the court should not issue an injunction against the Boyertown School District’s policy, they believed the court should have avoided “wading into fraught waters” by interpreting what Title IX of the Education Amendments of 1972 requires in regard to those with gender dysphoria.
“To say or imply that there is only one legally defensible policy decision that a school district can reach is not only unsupported; it is unsupportable,” they wrote. “[W]e should confine ourselves to resolving the specific matters before us, not some bigger issue we might like to address.”
The three-judge panel issued a revised ruling that still denied the injunction but toned down its language as it pertains to Title IX.
“Forcing transgender students to use bathrooms or locker rooms that do not match their gender identity is particularly harmful. It causes ‘severe psychological distress often leading to attempted suicide.’ The result is that those students ‘avoid going to the bathroom by fasting, dehydrating, or otherwise forcing themselves not to use the restroom throughout the day.’ This behavior can lead to medical problems and decreases in academic learning,” the panel wrote in both the June and revised versions.
It said that while there have been other students who have likewise limited their fluid intake to “minimize or avoid encountering transgender students,” the court does “not view the level of stress that cisgender students may experience because of appellees’ bathroom and locker room policy as comparable to the plight of transgender students who are not allowed to use facilities consistent with their gender identity.”
“Given the majority of the testimony here and the district court’s well-supported findings, those situations are simply not analogous,” the panel claimed.
It said that if any student—on either side of the issue—is uncomfortable with the locker room arrangement, they may utilize other areas to change.
“Any student who is uncomfortable changing around their peers in private spaces, whether transgender or cisgender, may change in a bathroom stall, single-user bathroom, or the private team rooms,” the court outlined. “The appellants seemingly admit that these accommodations ‘resolve all privacy concerns.’ Yet they insist that the policy should be changed to require that transgender students use individual bathrooms if they do not wish to use the communal facilities that align with their birth-determined sex.”
“Not only would forcing transgender students to use single-user facilities or those that correspond to their birth sex not serve the compelling interest that the school district has identified here, it would significantly undermine it,” it argued.
As previously reported, the legal challenge, filed against the Boyertown School District near Reading, began in early 2017 when a male student and his parents felt that their voice was not being heard in regard to a girl who was allowed to change in the boys’ locker room at Boyertown Senior High School.
According to the lawsuit, and an online video released by Alliance Defending Freedom (ADF)-affiliated attorney Randall Wenger, in October 2016, as the student was changing in the boys’ locker room for gym class, he noticed a girl standing just feet away from him also in a state of partial undress.
“While he was partially undressed, he looked behind him and noticed a girl standing there wearing nothing above her waist other than a bra,” Wenger explained.
Immediately concerned about the situation—as he was standing in nothing but his underwear, the teen hurriedly put his clothes on and left.
“He was naturally upset, so he went after class with a group of friends to go see the [assistant] principal to find out what was going on,” Wenger outlined. “And the [assistant] principal told him, ‘I’ve got no other options for you. I’m going to ask you to tolerate this and make it as natural as you possibly can.’”
The boy’s parents then sought themselves to meet with the assistant principal, Wayne Foley, but were allegedly advised that “the school district is ‘all-inclusive’ and that if [the boy] had a problem changing or using restrooms with people of the opposite sex, he would get him permission to go to the nurse’s office to change.”
Unsatisfied with Foley’s answer, the teen’s parents then met with Principal Brett Cooper, but he reiterated that the boy could use the nurse’s office if he was uncomfortable changing his clothes in front of the girl.
They soon also met with district Superintendent Richard Faidley, but he too held his ground, stating that if the boy did not want to change in the presence of the girl, and if he did not wish to use the nurse’s office, his parents could take him out of school and homeschool him.
The student sued the school district in March 2017, and since then, four other students have come aboard as plaintiffs, including Alexis Lightcap, who similarly went to Principal Foley after finding a male in the girls’ restroom.
“[Plaintiff] has a fundamental right to bodily privacy that, at a minimum, includes protection from intimate exposure of his body and intimate activities to a person of the opposite sex. It also includes the corollary protection from intimate exposure to a female’s body or intimate activities,” the legal challenge outlined.
A federal judge declined to grant the injunction in August, stating that the students had failed to show that they were being injured by the district’s allowance. An appeal was filed with the Third Circuit Court of Appeals, but the injunction was again denied. On Thursday, the court declined to rehear the case en banc, or before the full 12-judge court of appeals.
It is not yet known whether the plaintiffs will appeal to the U.S. Supreme Court.
The judges who dissented in Thursday’s ruling were Kent Jordan, Michael Chagares, Thomas Hardiman and Stephanos Bibas.