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SCOTUS Lets Transgender Bathroom Ruling Stand

WASHINGTON, DC - NOVEMBER 30: United States Supreme Court (Front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (Back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett Kavanaugh pose for their official portrait at the in the East Conference Room at the Supreme Court building November 30, 2018 in Washington, DC. Earlier this month, Chief Justice Roberts publicly defended the independence and integrity of the federal judiciary against President Trump after he called a judge who had ruled against his administrationâ  s asylum policy â  an Obama judge.â   â  We do not have Obama judges or Trump judges, Bush judges or Clinton judges,â   Roberts said in a statement. â  What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.â   (Photo by Chip Somodevilla/Getty Images)
By William Vogeler, Esq. on May 30, 2019 3:00 PM

The U.S. Supreme Court let stand an appeals court decision allowing transgender students to use boys or girls bathrooms at a Pennsylvania high school.

In Doe v. Boyertown Area School District, the U.S. Third Circuit Court of Appeals said transgender students can use bathrooms or locker rooms that correspond with their gender identity. It is the most recent transgender case to make it to the highest court in the land. The Supreme Court declined to decide the issues in the case, however, leaving the debate for another day.

For now, it's up to the transgender students to decide which facilities to use at Boyertown Area Senior High.

Right to Privacy

The case started in 2017 when six former and current high school students sued over the transgender policy of the Boyertown Area School District, which serves about 2,000 high schoolers. The plaintiffs complained the policy violated their right to privacy and subjected them to sexual harassment.

Under the policy, three transgender students were allowed to use facilities designed to accommodate their gender identity and avoid possible problems with other students. The district removed group showers in the locker rooms and replaced them with individual stalls. The district also added multi-user bathrooms with individual stalls.

Judge Edward Smith dismissed the plaintiffs' complaint, saying they did not show how the policy violated their rights. The Third Circuit agreed and affirmed. The Supreme Court issued a one-line order in declining to review the decision, but it had nationwide impact as the debate over transgender rights goes on. "We hope the Supreme Court will eventually weigh in to protect students' constitutional right to bodily privacy," said Christiana Holcomb, who represented the plaintiffs. "All schools," she added, "should be providing compassionate support for those dealing with gender dysphoria, but they should do it in a way that protects the privacy of all students."

'Exceptionally Well Reasoned'

The Third Circuit said the trial court decision was "exceptionally well reasoned." The appeals panel announced its decision less than 20 minutes after hearing arguments.

Judge Theodore McKee said at the time that the plaintiffs failed to show they were irreparably harmed by the policy, given the district had accommodated those who did not feel comfortable sharing facilities with transgender teens. In a formal opinion later, the justices defined the difference between "sex" and "gender." Sex is determined at birth, they said. "Gender" is a 'broader societal construct' that encompasses how a 'society defines what male or female is within a certain cultural context,'" McKee wrote. "A person's gender identity is their subjective, deep-core sense of self as being a particular gender."

That made all the difference, as the court said people can be born one sex yet identify with another gender. "Forcing transgender students to use bathrooms or locker rooms that do not match their gender identify is particularly harmful," the appeals court said.

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