Trans student’s case heads to the U.S. Supreme Court
BOYERTOWN >> The U.S. Supreme Court has been asked to weigh in on the legal challenge to the Boyertown Area School District’s controversial policy that allows transgender students to use the bathrooms and locker rooms matching their sexual identity.
The policy was enacted in the 2016-17 school year.
In July, a federal appeals court denied a request for a full court to rehear a challenge to the policy, which had sought to impose a preliminary injunction against its implementation.
A three-judge panel of the 3rd Circuit Court of Appeals in Philadelphia had ruled in May that the school district could continue to allow transgender students the choice of what facilities to use, particularly once the district added private changing rooms.
Students challenging the policy testified allowing transgender students to use the same facilities violated their right to privacy.
In July the 12 justices said they supported the decision of the three-judge panel that the policy did not violate the students’ right to privacy.
Michael Levin, an attorney for the school district, said the legal challenge to the policy is moving forward “on two tracks.”
The first is the attempt to impose a preliminary injunction. It is this case on which the Supreme Court has been asked to issue a ruling. A decision on whether the Supreme Court will take up that case is not likely before the new year, said Levin.
The U.S. Supreme Court typically agrees to hear only about 1 percent of the cases brought before it.
If it does not agree to hear it, the case goes back to the lower court. If it does, more detailed briefs will be filed and a schedule for oral arguments will be set.
Levin said the district has 30 days to file a response that will argue the lower court “took the correct action” in denying the preliminary injunction.
The second track challenges the policy “on the merits,” said Levin noting that until the preliminary injunction issue is settled, the second case is in on hold. “The case on the second track has not even left the station yet,” he said.
The appeal to the Supreme Court was filed on behalf of an anonymous group of Boyertown students by the Alliance Defending Freedom, an Arizona-based conservative non-profit “that advocates for the right of people to freely live out their faith,” according to the group’s website.
“Everyone should be able to agree that students struggling with their beliefs about gender need compassionate support,” John Bursch, Senior Counsel and Vice President of Appellate Advocacy for Alliance Defending Freedom, said in a prepared statement.
“But there are sound reasons why schools have always separated male and female teenagers in showers, restrooms, and locker rooms,” said Bursch. “No student’s recognized right to bodily privacy should be made contingent on what other students believe about their own gender.”
“A girl’s privacy doesn’t spring into existence or cease to exist based on what a boy thinks about his gender,” said Jeremy Samek, senior counsel for the Harrisburg-based Independence Law Center, which is also involved in challenging Boyertown’s policy on behalf of the students.
“This is an attack on transgender students, and we will continue to fight back,” the American Civil Liberties Union of Pennsylvania, which has filed briefs in support of the school district policy on behalf of the Pennsylvania Youth Congress, Tweeted in response to the appeal to the U.S. Supreme Court.