Federal judge eviscerates ‘privacy’ arguments in ruling for transgender student

No, a trans boy in the boys' locker room is not a threat to anyone.

Max Brennan. CREDIT: Freestate Justice
Max Brennan. CREDIT: Freestate Justice

A federal judge in Maryland ruled this week in favor of a transgender student’s right to access the locker rooms at his high school in the Talbot County School District. In doing so, he dismantled the school’s arguments that accommodating the student would somehow encroach upon his classmates’ “privacy.”

Max Brennan (identified as M.A.B. in the decision) attends St. Michaels Middle High School, where he has been generally accepted by his peers and teachers. But Max was not allowed to use the boys’ locker rooms, and the school has instead required him to use one of three single-use restrooms, even though they were far from the gym and had no benches, showers, or lockers.

Not only was this humiliating, but it also made Max often tardy for class, requiring him to disclose his trans identity and reveal the embarrassing restrictions in order to avoid disciplinary action. Sometimes he also just avoided changing his clothes, for which his phys ed teacher penalized his grade.

FreeState Justice, joined by the ACLU of Maryland, sued on Max’s behalf. The school defended its policy, arguing that allowing Max to use the locker room would constitute “government compulsion of students to expose their bodies and to be exposed to the bodies of students of the opposite sex [assigned at birth].” This was in spite of the fact that no male students had ever voiced any discomfort over Max sharing their restrooms, and many had even congratulated him when the school board granted him that access.

Even the availability of single-use restrooms and stalls within the locker room were not, however, enough to assuage the school’s purported privacy concerns. If Max was embarrassed to have to use a single-use restroom, the school argued, the other boys might be as well.

U.S. District Court Judge George L. Russell, III, an Obama appointee, completely dismantled these “privacy” arguments for four reasons in his opinion.

First, unlike other boys, Max is especially harmed by being barred from the boys locker room because it interferes with his social transitioning as part of his treatment for gender dysphoria. Second, Max faces discipline if he doesn’t comply with the policy, whereas if other boys have privacy concerns, they simply have the option of using a stall.

Third, the policy singles Max out and “marks him different for being transgender,” whereas a boy who wishes to use a stall “does not experience any such singling out at the hands of his school.” Lastly, even if other boys are embarrassed to use such a stall, it still grants them additional privacy. The school does not explain, Russell wrote, “how preventing such ill feelings further[s] the privacy rights of any students.”

Citing last year’s federal court ruling in favor of Wisconsin transgender student Ash Whitaker, Russell laid out how the school’s arguments amount to pure prejudice against Max:

Because Defendants contend that they may bar M.A.B. from the boys’ locker room completely — despite the presence of single-use restrooms or stalls — by implication, Defendants are arguing that the presence of M.A.B. in the boys’ locker room — itself — is what infringes on the privacy rights of other boys.

Defendants do not provide any explanation for why completely barring M.A.B. from the boys’ locker room protects the privacy of other boys changing there, while the availability of single-use restrooms or locker room stalls does not. Nor does the Court find any. M.A.B.’s presence in the boys’ locker room “provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates” while they change their clothes. So, as in Whitaker, preventing M.A.B. from changing clothes in the boys’ locker room “does nothing to protect the privacy rights” of students at the High School.

As in several other recent trans rights decisions, Russell ruled that trans students are protected both in terms of discrimination on the basis of sex (because of gender stereotyping) and that trans people are their own “quasi-suspect” class, meaning that the court must apply heightened scrutiny when assessing laws and policies that directly target them for unequal treatment.

The Supreme Court has laid out four criteria for recognizing a new classification for heightened scrutiny, and Russell agreed that transgender people easily meet those criteria. Trans people have been historically (and presently) subjected to discrimination; being trans bears no relation to their ability to contribute to society; they have a distinguishing, immutable characteristic; and they are “a minority or politically powerless.” He noted how few openly transgender people have been elected to higher office and how often the courts have been called upon to respond to laws and policies that target them for mistreatment.

Monday’s ruling has no immediate impact on Max’s life; Russell declined to issue a preliminary injunction because Max is not enrolled in phys ed this school year and does not otherwise need to access the locker rooms. The implication, however, is that Russell will issue a final decision on the merits on Max’s behalf by the time he returns to school — and phys ed — at the end of the summer.