BOYERTOWN >> The American Civil Liberties Union has joined the legal dispute over the Boyertown Area School district’s transgender locker room policy in support of the district.
The district “did the right thing in affirming and respecting their students’ gender identity,” Reggi Shuford, executive director of the ACLU of Pennsylvania, said in a prepared statement issued Monday.
The lawsuit was filed last month by the parents of an unidentified 11th-grade male student who objected after seeing a female who identifies as a male undressing in the high school boys locker room.
The Alliance Defending Freedom, an Arizona-based conservative Christian organization, is co-counseling the student and his family in the suit, along with the Independence Law Center, a Pennsylvania-based pro-bono legal organization dedicated to advancing civil rights.
The ACLU, both the national and Pennsylvania chapters, intervened on behalf of another Boyertown student, Aidan DeStefano, who is transgender and asserts he would be harmed by the reversal of the current policy.
The ACLU’s intervention is also on behalf of the Pennsylvania Youth Congress.
“Transgender students just want what everyone else wants, to be accepted for who we are,” DeStefano said in a press release from the ACLU. “Reversing the practices that have allowed me and other trans kids to thrive at school would be devastating.”
In its brief, the ACLU argued “Plaintiff asks this Court to order the School District to prohibit transgender boys from continuing to use the boys’ facilities. Because they can’t possibly use the girls’ facilities any more than other boys could be expected to do so, if Plaintiff were to prevail, transgender students would be excluded from the facilities used by all other students and forced to use separate facilities that other students may choose to use, but no other student is required to use.”
Doing so “would send the powerfully stigmatizing message to transgender students – and all other students – that there is something so wrong with transgender students that their mere presence in the facilities used by their peers is unacceptable,” the ACLU argued.
In a prepared statement provided by Brianna Herlihy, Media Relations Coordinator for the Alliance Defending Freedom and attributed to legal counsel Kellie Fiedorek, the organization responded to the ACLU’s involvement: “It’s unfortunate that the ACLU continues to support school policies that violate children’s legal rights and force boys and girls to shower and undress together in intimate facilities. Their efforts across the country brazenly disregard the feelings, rights, privacy needs, and dignity interests of all students. A more compassionate and lawful response would be to counsel schools to protect every child’s right to privacy.”
“Respect means protecting the personal privacy of each student, not taking it away,” ILC Senior Counsel Jeremy Samek said in a prepared statement. “It’s regrettable that a student would have to go to court to ensure that his well-established privacy rights aren’t tossed aside.”
“Schools can and should provide extra privacy protections or private restroom or changing areas for any student who requests it,” Leslie Cooper, senior staff attorney at the ACLU LGBT & HIV project said in a prepared statement. “But no student has a right to demand that transgender students be segregated from their peers.”
At its March 28 meeting, the Boyertown Area School Board voted 6-3 to reject a proposal from Joel Doe’s lawyers who offered to drop the suit if the district agreed to alter its policy to comply with four demands.
The demands the board rejected would have the district declare that all bathrooms, locker rooms, and changing areas accessible to multiple people at the same time are to be designated for use based on biological/anatomical sex only. And that no person, unless they are a member of that sex, may enter those multi-user areas. Any single-use facility such as a bathroom may be used by persons of either sex.
The March 21 letter also asked for a statement be issued that the policy protects the expectation of privacy those facilities are designed to protect and that the preceding will not affect maintenance, custodial or medical assistance needs.
The letter set a deadline of Tuesday to comply with those demands, one day after the ACLU intervened.
Attempts to obtain a statement from Boyertown Area Schools Superintendent Richard Faidley before press time Tuesday about the ACLU’s involvement were unsuccessful.
The case would appear to pose a conundrum for the ACLU given that the student on whose behalf the lawsuit was filed, identified only as Joel Doe, is arguing his privacy rights were violated; whereas the district’s policy is defending the civil rights of lesbian, gay, bisexual and transgender students, thus setting one set of civil rights against another.
“It’s a stretch to say this is a privacy issue,” said Mary Catherine Roper, deputy legal counsel of the ACLU of Pennsylvania and the lead counsel for its involvement in this case. “This wasn’t a difficult decision,” she said of the group’s involvement in the lawsuit.
“This is a political lawsuit by an activist group trying to establish as a matter of law that transgender people are not people and don’t have the right to use public facilities with the rest of us,” Roper said.
“This facility, like most school facilities, has private stalls and private changing rooms that this young man could use without him denying the rights of other people to use public facilities,” she said.
The case has also triggered discussion among other school boards over the issue.
During a recent Spring-Ford Area School Board meeting, the lawsuit and the issues with which it wrestles were a topic of discussion.
That board took the advice of Solicitor Mark Fitzgerald and the Pennsylvania School Boards Association, and decided to wait for a legal ruling before making any decisions.
The board policy committee has a draft on transgender students its been working on but has had to shelve it for the mean time, Assistant Superintendent Allyn Roche said. The policy addresses transgender access to locker rooms and bathrooms among other things.
“It’s on our agenda every month for us to talk about,” he said. “But with the unsure court cases, we’re really not ready to make a line in the sand at this time. We’re waiting there. So we do have a draft.”
Last spring, the Pottsgrove School Board’s policy committee made moves to address the issue in the wake of former President Obama’s issuing of guidance on how schools should handle transgender bathroom and locker room issues in the wake of a restrictive law in North Carolina which was just reversed this week.
Since the Boyertown lawsuit made headlines, the matter was raised on a Pottsgrove discussion page on Facebook.
On March 23, Pottsgrove School Board member Rick Rabinowitz, who manages the page, responded to questions and opinions by writing, “when it comes to this issue, the above debate illustrates the complexity and difficulty schools will have in coming up with a policy that works for everyone. Just because we have not yet done so does not mean that we have not been and are not being proactive.”
Rabinowitz further wrote, “the Boyertown case illustrates, to me, that hastiness is not always the right way to go. Each of our personal views on this matter may be different, but our first obligation is to comply with the law, and that law is a moving target right now. Our second obligation is to avoid decisions that might expose us (and thus the taxpayers) to costly legal cases and our equal obligation to that is to the students whether they are or are not transgender. We are taking our time to get this right.”
Although the Pottsgrove School Board met March 28, the matter did not come up for discussion.
Digital First Media Staff Writers Eric Devlin and Rebecca Blanchard contributed to this report.
