Andrea Rashaum is a mother, advocate, public school teacher, and mentor. Most importantly, Andrea is passionate about using her voice for our LGBTQ youth and ensuring schools are welcoming and inclusive environments where all students can flourish, including transgender students. It is our intention that in writing and sharing this piece, that organizations who support LGBTQ youth would do training and information will trickle down to staff including teachers, nurses, and counselors. – Barbara Antlitz
Yes! Transgender Students Have Rights in Sex-Segregated Areas
by Andrea Rashbaum
During the 2016-2017 school year Boyertown Area School District (BASD) in Pennsylvania updated their district policies. In order to create a more inclusive environment it was determined that transgender students could use the bathrooms and locker rooms that matched their gender identity. That school year went by without any complaints.
In 2017, a cisgender student came forward and complained. He stated that his right to privacy was denied when he was forced to change in the same locker room as someone of the “opposite sex.” According to BASD, a student’s gender was not determined by their anatomy but by their identity.
Counselors, administrators, and students sat down to discuss a transgender student’s status and determined the best course of action on a case-by-case basis. The school district upheld their decision to allow the transgender student to use the male facilities and also accommodated the cisgender student by stating that he could change in a private facility if that would make him more comfortable.
This case went to the United States District Court for the Eastern District of Pennsylvania; a federal court that sits in Center City Philadelphia. The case became known as Doe v. Boyertown Area School District. Three other cisgender students joined the lawsuit as plaintiffs. The District Court upheld the BASD’s decision in part because BASD receives funding from the federal government. Under Title IX regulations no school can discriminate on the basis of sex.
Unhappy with this decision, the plaintiffs appealed their case to the United States Court of Appeals for the Third Circuit. The case was argued on May 24, 2018. The 3rd Circuit Court judges issued their decision in less than one hour. The judges agreed to uphold the decision of the lower courts and went on to elaborate on their decision, a practice uncommon in such a case.
The cisgender complainants had stated that their right to privacy under the 14th Amendment was violated. The Circuit Court explained that the district’s transgender policy was not unconstitutional because “the School District’s policy served a compelling interest; preventing discrimination against transgender students.” Furthermore, the court cited the harassment of transgender students as detrimental to the student’s well-being.
“When transgender students face discrimination in schools, the risk to their well-being cannot be overstated—indeed, it can be life threatening. This record clearly supports the District Court’s conclusion that the School District had a compelling state interest in protecting transgender students from discrimination. Moreover, the School District’s policy fosters an environment of inclusivity, acceptance, and tolerance. Students in diverse learning environments have higher academic achievement leading to better outcomes for all students.”
Why is this ruling important to our Delaware students? The 3rd Circuit Court of Appeals is a federal court that has jurisdiction over Pennsylvania, New Jersey, Delaware, and the US Virgin Islands. Any decision made by that court becomes case law in Delaware and therefore must be upheld. A school district in violation of case law could face litigation.
It is also important to note that that on June 15, 2020, the US Supreme Court issued a landmark decision in Bostock v. Clayton County. The plaintiff in this case was fired because of their transgender status. The court determined that the employee was fired solely on the basis of transgender status and therefore their employer was in violation of Title VII of the Civil Rights Act of 1964. It has long been debated whether “sex” includes gender identity. This is the first decision in which it was established that transgender individuals have protection under Title VII. This decision has strengthened the ruling in the Boyertown case.
A student in Delaware must be permitted to use any sex-segregated facilities (bathrooms, locker rooms, etc.) that align with their gender identity. They must not be limited to a staff bathroom or a nurse's facility. This is in violation of the case law established by the 3rd Circuit Court in Doe vs Boyertown Area School District. It is important that all school district employees be educated on this decision so that discrimination of transgender students no longer takes place. For further information, email: firstname.lastname@example.org.
Barbara Antlitz, CAMP Rehoboth Youth Coordinator, works with Gender & Sexuality Alliances (GSAs) in middle and high schools in Kent and Sussex Counties, and with other groups supporting LGBTQ+ youth. Barbara can be reached by email at email@example.com.