Supreme Court Will Not Hear Challenge to School Transgender Bathroom Policy

The justices declined without comment to take up a case challenging a policy that allows transgender students to use school facilities consistent with their gender identity.

By Lauren Camera, Education Reporter May 28, 2019, at 2:14 p.m.

THE SUPREME COURT declined on Tuesday to hear a challenge to a school district's policy of allowing transgender students to use locker rooms and restrooms based on their gender identity.

The decision in Doe v. Boyertown School District is a major win for transgender students, their advocates and other school districts that have enacted similar protections, and it marks the second time the high court has passed on the issue. The court did not provide comment on their decision, including which justices came down on which side of the isssue.

"This is an enormous victory for transgender students across the country," Ria Tabacco Mar, senior staff attorney with the ACLU's LGBT and HIV Project, said in a statement.

"Boyertown's schools chose to be inclusive and welcoming of transgender students in 2016, a decision the courts have affirmed again and again. This lawsuit sought to reverse that hard-won progress by excluding transgender students from school facilities that other students use."

The appeal, brought by four students from Boyertown, Pennsylvania, where the policy went into effect at the beginning of the 2016-17 school year, argued that the school is violating its students' right to bodily privacy under the Constitution and effectively denying them access to locker room and restroom facilities on the basis of sex under Title IX, a federal law prohibiting discrimination in education.

The students who brought the complaint, classmates of the transgender students, reported feeling "embarrassed" about being in the locker room with someone of the opposite sex, and one student left the school altogether.

The U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, previously rejected the challenge.

"No student's recognized right to bodily privacy should be made contingent on what other students believe about their own gender," John Bursch, senior counsel and vice president of appellate advocacy for Alliance Defending Freedom, said in a statement. "We hope the court will take up a similar case in the future to bring much needed clarity to how the lower courts should handle violations of well-established student privacy rights."

The Arizona-based Alliance Defending Freedom and the Pennsylvania-based Independence Law Center, both conservative, faith-based legal organizations, represented the students and their families.

Notably, the Justices rescheduled the students' petition 10 times before finally considering it last week, which some Supreme Court watchers say signals they were potentially considering some other action. Two years ago, the justices similarly declined to hear a separate case that raised the same privacy questions after the Trump administration rescinded Obama-era guidance that reminded school districts that denying transgender students access to a restroom that matches their gender identity qualifies as sex discrimination under Title IX.