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What you should know about the law and bathrooms

ELIZABETH LEPRO
Posted 4/3/19

In light of recent controversy at Honesdale High School regarding the use of the girls’ locker room, it’s good practice to get the facts straight and review a brief history of transgender …

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What you should know about the law and bathrooms

Posted

In light of recent controversy at Honesdale High School regarding the use of the girls’ locker room, it’s good practice to get the facts straight and review a brief history of transgender students, bathrooms and the law.

After a recent complaint against the district from a student and her family who were uncomfortable with the idea of transgender students in locker rooms, Wayne Highlands Superintendent Gregory Frigoletto said he plans to follow the Boyertown ruling in allowing students to use locker rooms and bathrooms of their choice.

What does that mean?

You can find a full explanation of the Joel Doe v. Boyertown Area School District case in last week’s River Reporter (www.bit.ly/TRRboyertown). Essentially, in July 2018, the Third Circuit U.S. Court of Appeals in Philadelphia ruled that school districts should allow transgender students to change in locker rooms of their choice because not doing so would be more harmful to those students than to gender-conforming students.

In November 2018, the plaintiffs of the Boyertown case—represented by the Christian organization, the Alliance Defending Freedom—asked the Supreme Court to review that ruling. That review is still pending.

Andrea Shaw, who is representing the family of the Honesdale High School student who filed the complaint, claims that this has left the state of the law uncertain. Philadelphia attorney Julie Chovanes, executive director and legal program director at Trans-Help, a non-profit organization specializing in LGBT education and civil rights litigation, said that is not true. “It doesn’t remain uncertain. It’s certain. The law of the third circuit is certain,” she said.

What legal protections exist for trans students in PA?

  • By law, harassment from peers or teachers because of a person’s gender is not allowed. The Pennsylvania Department of Education policy prohibits discrimination based on sexual orientation in PA.
  • Both the Fourteenth Amendment right to equal protection and Title IX protect the right of transgender students to dress and act in accordance with their gender identity.
  • Students have the right to wear clothing that supports their gender identity, as well as clothing that supports LGBTQ+ rights, as long as it does not include profanities or obscenities that violate the school’s dress code.
  • As long as a school allows the creation of clubs, students have the right to form a club or student group that supports LGBTQ+ rights or gay-straight alliances.
  • The Pennsylvania Human Relations Act, which prohibits discrimination on the basis of sex, includes a 2018 guidance that broadens that category to include “prohibition of discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity and gender expression.”
  • Anyone over the age of 18 can request a change to the sex listed on their birth certificate, as long as a doctor signs off that the person is in the process of a clinical transition. 
  • Parents and students can request to change the student’s gender identity in the Pennsylvania Department of Education Information Management System.

This information comes from The American Civil Liberties Union and the Pennsylvania School Boards Association

Additionally, Shaw said the situation at Honesdale is different because “the harassment in this case is even more egregious than Boyertown.”

Thus far, no cases that argue against allowing students to use bathrooms of their choice in public schools have been successful. The Boyertown ruling is still the ruling precedent.

Why we’re talking about bathrooms

Bathroom and locker room use became a sticking point for the conversation about transgender individuals around 2015, when a Virginia high school student named Gavin Grimm sued his high school, saying he should be allowed to use the bathroom of his choice. That case was appealed all the way to the Supreme Court, but the justices declined to hear the case, sending it back to the lower court for further consideration. Eventually, the appeals court did rule in Grimm’s favor, as federal courts have done with Boyertown and a similar case in Florida.

Even before Grimm, however, universities across the country started introducing gender-neutral bathrooms and spaces.

Reacting to the sweeping move toward gender-neutral spaces, North Carolina introduced a now infamous bill, called HB2, in 2016. That bill required people to use bathrooms that applied to their external anatomy at birth, thus restricting transgender people from using bathrooms of their choice.

Later that year, the Departments of Justice and Education issued a guidance statement that discriminating against transgender students violates Title IX, which allows for gender and sexual equality in schools. All schools that received federal funding were required to treat gender as a protected category. In February 2017, President Donald Trump’s administration revoked that guidance, resulting one month later in the Supreme Court vacating the Grimm decision and asking the appeals court to handle the  case.

The precedent on the use of bathrooms and locker rooms at high schools has been set several times, but now the Trump administration is considering redefining gender to exclude transgender and non-binary people.

Lawyers and trans-rights advocates like Trans-Help’s Chovanes say that the current presidential administration, and a conservative Supreme Court, offer anti-LGBTQ+ groups a chance to re-open the issue and spark another round of national debate. “I think what the plaintiff is trying to do here is to try to take advantage of the fact that we are the ones who get kicked around in this political climate,” Chovanes, who is trans, said.

Shaw, the lawyer representing the Honesdale student’s family, has not said anything about being explicitly anti-trans or anti-LGBTQ+.

Her law firm, the office of Andrew H. Shaw, is a Christian-centric firm. The Alliance to Defend Freedom—a Christian law organization that has fought against same-sex marriage and, famously, fought for businesses that did not want to serve LGBTQ+ customers—has written that she is allied with the organization.

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