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BOYERTOWN, PA — Wayne Highlands School District Superintendent Gregory Frigoletto has said, regarding the use of locker rooms by students who are transgender, the district is being guided by the ruling in the Joel Doe v. Boyertown Area School District (BASH).
In the 2016-17 school year, BASH adopted a new policy that allowed transgender students to use locker rooms that matched their gender identity rather than their sex at birth. Three students and their parents sued the school, saying that the policy violated the privacy rights of the cisgender students, or students who accept the gender they were born with. To this point, a federal district court and an appeals court have sided with BASH and refused to order the district to change its policy.
In the appeals court ruling, the three-judge panel quoted the American Psychological Association and the Association of National School Psychologists when it wrote that policies that prevent transgender students from using their preferred facilities harm transgender students. Such policies “exacerbate the risk of ‘anxiety and depression, low self-esteem, engaging in self-injurious behaviors, suicide, substance use, homelessness, and eating disorders among other adverse outcomes.’”
The court wrote that the risk of suicide among transgender individuals is nine times higher than the general population. “Yet, when transgender students are addressed with gender appropriate pronouns and permitted to use facilities that conform to their gender identity, those students ‘reflect the same, healthy psychological profile as their peers.’”
The court noted that the students suing the district testified that they had taken steps like drinking less water so they would have to use the restrooms less often, and thereby reduce the likelihood of encountering a student who is transgender in the bathroom. But, “we do not view the level of stress that cisgender students may experience because of appellants’ 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.”
The court noted that BASH has eight single-user bathrooms in the school, and at least four of them are available to students if they are not comfortable using a locker room that is also being used by a transgender student.
The cisgender students argued that BASH could adopt a policy that requires transgender students to either use the single-user bathrooms or the facilities that match their birth sex. But court referenced another court case and said such a policy elsewhere “actually invited more scrutiny and attention from his peers.” Adopting the appellants’ position 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.”
The court wrote, “even if the school district’s policy implicated the plaintiffs’ constitutional right to privacy, the state had a compelling interest in not discriminating against transgender students… and even if a cisgender plaintiff had been viewed by a transgender student (partially undressed), it would not have violated the cisgender student’s constitutional right to privacy.
“The mere presence of a transgender student in a locker room should not be objectively offensive to a reasonable person given the safeguards of the school’s policy.”
The U.S. Court of Appeals for the Third District handed down the ruling in July 2018. In November, the plaintiffs asked the U.S. Supreme Court to hear the case.