The U.S. Supreme Court declined Tuesday to review a case involving Boyertown Area School District (near Pottstown) that could have had negative implications for transgender students in public schools across the country. In 2016, Boyertown began allowing transgender students to use the restrooms and locker rooms that aligned with their gender identity. A group of students sued the school district, claiming that the policy violated their constitutional right to bodily privacy. They lost in federal district court, and then in the U.S. Court of Appeals for the 3rd Circuit, which ruled last July that the presence of transgender students in school restrooms and locker rooms does not offend “constitutional or Pennsylvania-law privacy interests,” and that the school district “clearly had a compelling state interest” in shielding transgender students from discrimination. The U.S. Supreme Court decided to let that ruling stand.
If the members of the Eastern Lancaster County school board were hoping for an assist from the U.S. Supreme Court, their hopes have been dashed.
If the board implements its policy recommending that transgender students use restrooms and locker rooms based on the gender they were assigned at birth, it might as well start saving for the lawsuits now.
Because the district’s probability of being sued just got even higher.
And board members won’t be able to say they weren’t warned.
But some district residents didn’t want transgender students to be permitted to use, in the meantime, the facilities that aligned with their gender identity. So, amid the furor, the board tacked on an addendum to its proposed bathroom policy. The addendum recommended “that (wherever) we cannot provide private (single-user) facilities when changing or using the bathroom facilities, the students are to use the facilities based on their biological sex. Anywhere within the district that our system has not caught up with the renovations this will be in effect.”
The addendum didn’t just deserve a failing grade for poor syntax, it represented an invitation to litigation.
And two incumbents with 16 years of combined school experience — Rodney Jones and Melissa Readman — were punished by the local Republican Party for their wisdom in voting against the policy with its ill-fated addendum.
They lost the party’s endorsement, which they’d received in previous elections. Instead, as LNP’s Alex Geli reported, the area GOP committee endorsed five school board candidates who support student separation by biological sex.
Lacking the endorsement, Jones and Readman did not seek re-election. Which is a shame, because the school board is going to need to face the reality these two public servants already have smartly grasped.
And that is this, as neatly stated on the website of the Pennsylvania School Boards Association: It is “urgent that public school districts in Pennsylvania make legally informed decisions regarding transgender students’ rights.”
Not emotional decisions. Or religiously informed decisions. But legally informed decisions.
In an Elanco school board meeting, one district resident asserted that even “if we lose in man’s court, it is God’s court that matters the most.”
We deeply respect people’s religious beliefs. But a public school district must be concerned with “man’s court” — in this case, the 3rd Circuit Court of Appeals.
This means that, as fiscal stewards of Elanco school district, school board members will need to keep it from being crushed by litigation it is doomed to lose.
The nation’s highest court clearly isn’t going to arrive any time soon, like the cavalry, and relieve the Elanco school board of its need to do the right thing for transgender students and for the school district’s fiscal health.
Lizzy Wingfield, an attorney at the Education Law Center in Philadelphia, said that prior to the 3rd Circuit Court’s “well-reasoned” decision, “many school districts were confused about their obligations to transgender students under civil rights laws. But now, it is clear … that school districts must allow LGBTQ students to be themselves in school.”
That is indeed clear.
Some Elanco school board members may not understand what it means to be transgender. We acknowledge that it can be difficult to understand. To someone who’s transgender, as we tried (imperfectly) to explain in February, the gender assigned at birth “can feel like an ill-fitting and deeply uncomfortable costume that doesn’t match that person’s thoughts or feelings. Continuing to wear that costume feels like torment.” Indeed, being forced to wear it can cause severe psychological harm. One doesn’t choose to be faced with this struggle.
Like we said, it was an imperfect explanation.
Understand it or not, however, school board members by law must accommodate the needs of transgender students who seek only to be safely who they are in the place where they go to learn.
Elanco should continue, as district superintendent Bob Hollister put it this week, on its “path toward ‘student privacy for all.’ ” Individual restroom stalls, showers and changing spaces are an excellent idea, and the trend is toward such single-user facilities in schools.
But the addendum cannot be implemented without significant legal risk — and expenditures of taxpayer money. That is even clearer now that the nation’s highest court has declined to weigh in.