At a time of great legal confusion for transgender students, there’s one piece of good news out of Pennsylvania, where a federal judge issued a ruling on Monday protecting trans students at a small district outside Pittsburgh.
Judge Mark Hornak, an Obama appointee, issued a preliminary injunction blocking the Pine-Richland School District from enforcing Resolution 2, a policy that prohibited three trans students in the district from using restrooms matching their gender identity.
Hornak concluded the students were likely to succeed on a constitutional claim that they had been denied equal protection under the law.
“This is wonderful news and a tremendous relief that we can now use the bathroom without feeling isolated and humiliated,” Elissa Ridenour, one of the students, said in a Lambda Legal press release.
Prior to the district passing Resolution 2, the three students (two trans young women and one trans young man) were using the restrooms that matched their identities without incident. “The Court has no difficulty in concluding that the Plaintiffs have demonstrated a likelihood that they can establish the level of purposeful discrimination underlying a valid Equal Protection claim,” he wrote, noting that Resolution 2 did nothing except treat these three students differently for no apparently good reason.
Hornak was apparently unconvinced by the district’s argument that a student might “masquerade as being transgender” in an attempt to take advantage of protections for lewd purposes. “For an ‘imposter’ to take such steps would be an extensive social and medical undertaking,” he wrote. “That would appear to the Court to be a really big price to pay in order to engage in intentionally wrongful conduct that is unlawful under state law and contrary to the District’s stated expectations as to student conduct.”
According to decision, there is no evidence that any student was ever exposed to any other student.
The district also failed to persuade the court that it had a duty to parents concerned about their children’s privacy. In a footnote, Hornak explained that civil rights aren’t generally left up to a popular vote:
The District also stated that the implementation of Resolution 2 as to the Plaintiffs furthered a “fundamental right” of parents to raise children. It did not explain how or why such rights of other District parents are to take precedence over the same rights of Plaintiffs’ parents, who very much desire that Plaintiffs use restrooms conforming to their gender identities. In some ways, this and some other of the District’s arguments boil down to contending that Resolution 2 is a legally-permissible restriction on Plaintiffs’ use of school bathrooms because more residents who spoke at School Board meetings desired that outcome than not. Historically, that has not been the basis upon which the application of Constitutional rights is to be determined.
Among the resources the district used to make their case was an article published last year in The New Atlantis that attempted to undermine the legitimacy of transgender identities by selectively citing certain studies while ignoring others. In another lengthy footnote, Hornak eviscerated the article, noting that it was not peer reviewed, there is no evidence of empirical research, and it’s not even clear the district used it when passing Resolution 2. Moreover, Hornak found the reality of the three trans students’ lived experience of their gender identity far more compelling than the article’s attempts to sow doubt about what the science says.
“Gender identity is entirely akin to ‘sex’ as that term has been customarily used in the Equal Protection analysis,” he wrote, adding that these students’ gender identities are “neither transitory nor temporary.”
Hornak stopped short of concluding that the students also enjoyed protection under Title IX, a law that grants protections on the basis of sex in education. For one, he recognized that the Supreme Court’s ongoing consideration of that question in Gavin Grimm’s case precluded his ability to rule on it. But moreover, he pointed out that the Trump’s administration recent decision to rescind guidance stating that trans students are protected has made it a very legal confusing question.
When the Court of Appeals for the Fourth Circuit ruled in Grimm’s favor, it gave deference to the Obama administration’s guidance at the time. But since Trump’s withdrawal of that guidance didn’t replace it with new guidance, it’s unclear what administrative positions — if any — the courts should give deference to. If the Supreme Court opts not to directly answer the question of whether Title IX protects transgender students, that confusion will likely persist.
In the meantime, at least, the three students at Pine-Richland will be allowed to resume using the restrooms that match their gender identities.