Two courts, one in Pennsylvania and another in Virginia, last week disregarded students’ pleas for privacy in public school locker rooms and restrooms. The judges avoided making any distinctions between the sexes and ruled transgender students should be allowed to use the sex-segregated facilities that affirm their gender identity.
In a highly unusual move, a three-judge panel of the 3rd U.S. Circuit Court of Appeals based in Philadelphia took only 15 minutes Thursday to unanimously deny an appeal by four Boyertown, Pa., high school students seeking an injunction against a school policy allowing transgender students into sex-segregated private spaces. In the other case, G.G. v. Gloucester County School Board, a female student who identifies as male challenged her Gloucester, Va., high school’s policy requiring her to use the restroom that corresponds with her biological sex.
By adopting a subjective meaning of the word “sex,” both courts ruled that those asking for sex-segregated facilities had no claim to protection under Title IX or the 14th Amendment’s equal protection clause. “Sex,” one judge declared, is “complicated.”
Only four minutes into Thursday’s oral arguments in the Pennsylvania case, Doe v. Boyertown Area School District, U.S. Circuit Judge Theodore McKee stopped plaintiffs’ attorney Randall Wenger and forbade him from defining the words “sex” and “opposite sex.”
“When you use the word ‘sex’ you complicate the discussion,” McKee told Wenger. “It’s not that simple. That’s why I use the term transgender boy or girl to try and get around that problem.”
Wenger replied, “Those terms stand in contradistinction because transgender wouldn’t make any sense apart from the terms.” But McKee again interrupted and demanded Wenger use “respectful” words.
“I know, for reasons beyond my comprehension, you don’t approve of those terms, don’t like to use those terms, but it greatly enhances the communication,” McKee said.
It also greatly enhanced the school district’s case. By using subjective terms about biological sex, the school’s attorneys easily avoided acknowledging that the Boyertown policy permits teenage boys and girls to use the same changing facility. In 2016, the year school officials quietly implemented the policy, one of the plaintiffs had undressed to his underwear to change for physical education class before noticing a female student in the locker room who had also partially undressed. Caught literally with his pants down, the plaintiff, a sophomore at the time, was humiliated.
The judges and defense attorneys made light of the plaintiff and the other students’ concerns about bodily privacy. No one expects privacy in a locker room, they said. And no private body parts were exposed during the incident, according to the lawsuit. Students who do not like undressing in front of a “transgender student” can change clothes in a shower or toilet stall, American Civil Liberties Union attorney Ria Ma argued. (Defense attorneys repeatedly avoided acknowledging sex distinctions by using terms like “student,” instead of boy or girl.)
In Virginia, the Gloucester County School Board had allowed transgender student Gavin Grimm to use the restroom of her choice before community members discovered the practice and protested. The board then established a policy requiring students use the facilities that correspond with their biological sex.
Grimm, a female student who identifies as male, sued the school district in 2015. The U.S. Supreme Court had agreed to hear the case until last year, when the Trump administration rescinded an Obama-era regulation requiring all publicly funded schools to accommodate transgender students. After the policy change, the Supreme Court sent the case back to the U.S. District Court for Eastern Virginia. On May 22, U.S. District Judge Arenda Allen denied the school district’s motion to dismiss the case.
In the three years since Grimm sued, rulings in similar cases have held that excluding transgender students from the private facilities of their choice on campus may subject the schools to discrimination lawsuits under Title IX and the equal protection clause, Allen said. Although not bound by those decisions, she cited them anyway to bolster her decision for Grimm.
In making an argument for classifying transgender persons as a quasi-suspect class, Allen declared, “Transgender is immutable.”
The Gloucester County School Board has not indicated whether it will again appeal.
The plaintiffs in the Pennsylvania case could appeal to the full 3rd Circuit, where Wenger hopes he can define the terms at the heart of the case.
“A proper meaning of ‘sex’ and ‘opposite sex’ is critical to understanding the rights involved,” Wenger told me. “Everything starts to become very illogical once terms like sex, boy, and girl turn on gender identity.”