The U.S. Court of Appeals for the Third Circuit this week completely rejected hate group Alliance Defending Freedom (ADF)’s attempts to discriminate against transgender students. This is a very significant defeat for ADF, which has been losing cases challenging transgender students’ rights all across the country.
The decision comes on the heels of a pretty unusual proceeding. After hearing oral arguments in the case, in which ADF challenged a Pennsylvania school’s transgender-inclusive policy, the circuit panel deliberated for less than an hour before issuing a ruling from the bench. This week, the Court issued its written opinion agreeing with a lower court’s decision not to enjoin the policy.
In the case, ADF represented a group of families whose students attend Boyertown Area School District in southeastern Pennsylvania. They sued the school, claiming that its policy of letting transgender students use facilities that match their gender identity posed a threat to these students’ privacy.
As part of the policy, Boyertown Area Senior High School (BASH) added single-use stalls to all of the facilities in the school — which should have resolved any privacy concerns the ADF clients had regarding sharing facilities with their transgender classmates. “Yet they insist that the policy should be changed,” the decision explains, “to require that transgender students use individual bathrooms if they do not wish to use the communal facilities that align with their birth-determined sex.”
The Court noted that the school has a compelling interest in ending the stigma that transgender people experience when they are arbitrarily segregated in such a way — referencing the Nathaniel Hawthorne novel about a woman who was forced to wear a scarlet “A” to shame her as an adulteress.
“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 writes.
ADF also argued that when transgender people use facilities that match their gender, it constitutes sexual harassment of the other people in those facilities. The Third Circuit saw right through this prejudice.
“As we have emphasized, the appellants’ real objection is to the presence of transgender students, not to any ‘environment’ their presence creates,” the decision states. “Indeed, the allegations here include an assertion that a cisgender student was harassed merely by a transgender student washing that student’s own hands in a bathroom or changing in a locker room. That is not the type of conduct that supports a Title IX hostile environment claim.”
ADF’s comparisons to cases where men intruded upon locker rooms to leer at women, or blocked the entrance so women had to brush past them, were “patently frivolous,” according to the Court. Other comparisons to strip searches or criminal convictions for voyeurism were likewise “wholly unhelpful.” Contrary to ADF’s claims, “there is simply nothing inappropriate about transgender students using the restrooms or locker rooms that correspond to their gender identity under the policy BASH has initiated, and we reject appellants’ attempt to argue that there is.”
The reality, the Court noted, is that locker rooms and restrooms are “just not that private.” In fact, that’s kind of the point. With the privacy stalls available, there’s just nothing about the policy that will actually force any cisgender student to disrobe in the presence of any students.
Reiterating a point the lower court made in its ruling, the panel concluded that “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.”
This is the third federal appeals court to set a very strong precedent protecting transgender students from the kind of discrimination ADF supports. Last year, the Seventh Circuit ruled in favor of a transgender student in Wisconsin, and the year before, the Sixth Circuit ruled against an anti-trans school in Ohio represented by ADF.
With these three circuits combined, there are now strong precedents protecting transgender students under federal law in at least ten states — regardless of whether those states have laws explicitly protecting transgender students from discrimination. Cases bubbling up in Virginia and Maryland could soon add the five states of the Fourth Circuit to that growing precedent.
ADF has said it may appeal the Boyertown case.