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'Real differences between men and women': The Battle over Student Privacy, Transgender Policy


A federal appeals court panel ruled this week that a Pennsylvania school district can continue allowing transgender students to use bathrooms and locker rooms that match their gender identity.

The U.S. 3rd Circuit Court of Appeals ruled in favor of the Boyertown Area School District, reaching their decision in about 15 minutes after hearing extended arguments in the case, The Morning Call of Allentown, PA, reported.

According to the newspaper, judges with the 3rd Circuit Court of Appeals usually take weeks or months to hand down decisions, but Judge Theodore McKee made an unusual decision to allow the panel a half hour to try to rule on the appeal. The Morning Call said McKee acknowledged that the high school's graduation is coming up soon. 

Several students filed the lawsuit against the district for making the decision, claiming it violated their constitutional privacy rights.

But the appeals panel ruled unanimously that the high school students who challenged the district's transgender policy had not proven they would succeed in a full trial or that they would be irreparably harmed by the policy, the newspaper reported.

The non-profit legal organization Alliance Defending Freedom, who argued on behalf of the students challenging the policy, disagreed.

"The Supreme Court has already spoken: The real differences between men and women mean that privacy must be protected where it really counts, and that certainly includes high school locker rooms and restrooms," said ADF Legal Counsel Christiana Holcomb in a statement. 

"This decision is out of step with longstanding legal protection for privacy. We will continue advocating for these young students," she continued.

Lawyers for the students challenging the policy said they will ask the court to hear their appeal again before a larger panel, The Morning Call reported.

One of those students, Alexis Lightcap, said when she walked into the women's bathroom as a junior in high school, she saw a transgender student and froze. She said she later shared the experience with a teacher and the principal, who said the district adopted a new policy.

"They made me feel like I was the problem for feeling uncomfortable, unsafe and vulnerable with a boy in my bathroom," Lightcap said, according to The Associated Press.

"Today's ruling was very disappointing, and made me feel — again — like my voice was not heard. Every student's privacy should be protected," she also said in a statement, according to ADF. 

In an "amended verified complaint", the plaintiffs declared:

"This case is about the intentional violation of students' fundamental right to bodily privacy contrary to constitutional and statutory principles, including the Fourteenth Amendment, Title IX, invasion of seclusion, and the Pennsylvania's Public School Code of 1949, which requires separate facilities on the basis of sex." 

A lawyer representing the school district said its policy of permitting students to use bathrooms and locker rooms that match their gender identity is legal and stops claims from being filed against the district that allege it did not offer equal protection to transgender students.

The lawyer also said the district allows students who feel uncomfortable to use single-stall showers and single-stall bathrooms to change for gym class.

The Boyertown Area School District released a statement regarding the court's decision:

"The Boyertown Area School District (BASD), which deeply respects and is sensitive to the privacy rights of all students, is gratified with the Third Circuit Court of Appeals ruling today that unquestionably supports the District’s actions regarding matters of bathroom/locker room facility access and accommodation. It is the hope of the BASD Board and Administration that this decision, which affirmed the lower court’s ruling, will be viewed as validation of the thoughtful and compassionate actions that have been taken to ensure a welcoming, quality educational environment for all of our students. While we have always recognized the right of the defendants to file their challenge, today we acknowledge and applaud all those that have supported our efforts, including the work of our legal team, and look forward to the day when this case can be marked ‘closed’."

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