- The Washington Times - Tuesday, May 28, 2019

The Supreme Court said Tuesday it won’t hear a challenge to a Pennsylvania school system’s transgender bathroom policy, leaving in place rules that allow some transgender students to use restrooms and locker rooms of their preference.

Transgender-rights groups cheered the decision as a major win, while opponents said they hope the justices do eventually weigh in.

Boyertown Area School District’s policy says cases are taken individually, and a transgender student cannot automatically switch based on preference. Rather it takes multiple conversations with a guidance counselor.

Students and parents, though, rejected the school’s approach and sued, arguing their privacy rights were being violated.

A lower court had rejected that claim, and the justices rejected the families’ appeal without comment.

“This is an enormous victory for transgender students across the country,” said Ria Tabacco Mar, senior staff attorney with the American Civil Liberties Union.

Boyertown implemented its unwritten policy in response to Obama administration guidance that federal civil rights law required schools to students to choose which bathrooms or locker rooms to use based on their “internal sense of gender.” A refusal to implement the standard risked federal funding.

Boyertown didn’t notify parents or students about its changes, which took place in the 2016-2017 school year.

As a result, some students felt uncomfortable and did not change clothes for gym class. At least one student left the school because of the policy.

The 3rd U.S. Circuit Court of Appeals, which heard the case and rejected the parents’ claims, said students don’t have a right to avoid encountering transgender students in bathroom or locker room settings, saying it was “no more offensive to constitutional or Pennsylvania-law privacy interests than the presence of the other students who are not transgender.”

Christiana Holcomb, legal counsel at Alliance Defending Freedom, said the courts will likely have to confront the issue again.

“These types of school policies have serious privacy implications. That’s why we hope the Supreme Court will eventually weigh in to protect students’ constitutional right to bodily privacy,” she said.

The high court had touched on the issue in 2017, in a case involving a transgender Virginia student who argued his school policy was discriminatory because it did not allow him to use the facility of his choice.

The justices remanded that case back to the lower courts after the Trump administration withdrew the Obama administration’s guidance. The litigation is still ongoing.

Scott Skinner-Thompson, a law professor at the University of Colorado, said the court’s move on Tuesday is consistent with federalism by deferring to a local school district policy rather than creating a national law.

“Both cases ultimately illustrate the court doesn’t want to get involved too quickly,” he said. “It wanted to give lower courts the first bite at the apple.”

Meanwhile, another case out of Oregon, which is similar to Boyertown, is currently pending at the 9th U.S. Circuit Court of Appeals.

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