Elanco School District photo

The Eastern Lancaster County School District offices are inside Garden Spot High School, 669 E. Main St., New Holland.

The American Civil Liberties Union is urging the Eastern Lancaster County school board to reverse course on a new bathroom and locker room policy that critics say illegally singles out transgender students.

“It is profoundly stigmatizing to be told that your very presence in a restroom is unacceptable simply because you are transgender,” Ria Tabacco Mar, an attorney for the national ACLU, told LNP. “It is also illegal, as numerous federal courts have recognized.”

An addendum in the district’s Physical Privacy policy, approved by the board last week, states students are to use bathrooms and locker rooms that align with their biological sex, rather than gender identity, until private, single-user facilities are available districtwide.

That’s despite the district’s previous decision to allow a transgender student who identifies as male to use the boys’ facilities at Garden Spot High School.

Reversing those accommodations, board President Glenn Yoder has said, would be a “gamble with very high stakes.”

Yet critics say that’s precisely what the board did by adding the controversial addendum.

Defending the policy

“I think we can all agree that the Board has taken a studied, thoughtful, and rational approach to finding a solution that will serve and protect the rights of all students,” Yoder said in an email Friday.

“Our willingness to seek input from community members and students, along with professional advice from multiple law firms, architects, and the faculty have shown how seriously we value the rights of all students, and we hope to continue dialogue with all interested parties.”

Asked why the board changed course, Yoder added, “the only comment is that we are making available single-user facilities for any student who is not comfortable using their assigned restroom.”

Currently, according to district Superintendent Bob Hollister, there are two such facilities in the high school — in the main office and nurse’s office.

Awaiting solicitor review

Hollister said last week the policy, as it stands, could lead to a lawsuit.

While he has opted not to comment on the addendum itself, he said McNees, Wallace & Nurick — the law firm hired to help craft the policy — will review it prior to the next board meeting and make “any final recommendations then.”

The next meeting, a work session, is scheduled for May 13 — one day before the policy is implemented — at 7 p.m. at Garden Spot High School. 

The Pennsylvania School Boards Association reviewed the policy prior to when the board added the addendum.

PSBA spokeswoman Annette Stevenson said the organization typically provides “policy perspective only,” such as language consistency and alignment with existing policy.

“With respect to the content of the policy, our recommendation is always for the district to work with their solicitor to inform these decisions," Stevenson said.

Case law

On its website, PSBA urges schools to consider students’ privacy concerns “by providing them with single-user or partitioned changing or toilet areas if they are uncomfortable changing or toileting in open locker areas.”

That’s based on cases such as Doe v. Boyertown Area School District, in which the plaintiffs wanted Boyertown to discontinue its practice of permitting transgender students to use facilities aligned with their gender identity.

The federal Third Circuit Court of Appeals found that “the presence of transgender students in the locker and restrooms is no more offensive to constitutional or Pennsylvania-law privacy interests than the presence of the other students who are not transgender. Nor does their presence infringe on the plaintiffs’ rights under Title IX.”

Requiring transgender students to use single-user facilities, the court added, “would very publicly brand all transgender students with a scarlet ‘T,’ and they should not have to endure that as the price of attending their public school.”

For those reasons, the ACLU’s Tabacco Mar said, inclusive policies “are good not only for transgender students, but for all students.

“Fortunately, the board still has the opportunity to remove this harmful addendum and move forward with an inclusive policy that respects all students.”