More than a “Bathroom Battle”: The Constitutional Rights of Transgender Children at School


On February 22, 2017, the Justice Department under the Trump Administration made it clear that it did not believe transgender students deserve protection under Title IX (the federal civil rights law prohibiting sex discrimination in education). Thankfully, though, Title IX is not the only law that protects students in public schools.* The United States Constitution provides another legal avenue, one that the Western District of Pennsylvania has recently declared is likely to protect transgender students from discriminatory bathroom policies.

On February 27, 2017, District Judge Mark Hornak, an Obama appointee, issued a thorough opinion in Evancho v. Pine-Richland School District, ruling in favor of three transgender high school students at a public school (see below for a link to the full opinion). The Court analyzed whether the school district violated federal law when it forced the students to use either single-user bathrooms or common bathrooms matching their assigned sexes (rather than their gender identity).

I’ve written about discriminatory bathroom policies in two previous posts:

In these posts, I highlight how fiction can help us understand the impact of discriminatory bathroom policies on the people they target (something I make an effort to understand as a cisgender person). I focused on a paragraph from Alex Gino’s George, a middle grade novel, that shows some of the harms transgender students experience when schools prohibit them from using the bathroom that matches their gender identity:

[George**] stumbled, sobbing, into the bathroom—the boys’ bathroom. Her lips trembled and salty tears dripped into her mouth. George hated the boys’ bathroom. It was the worst room in the school. She hated the smell of pee and bleach, and she hated the blue tiles on the wall to remind you where you were, as if the urinals didn’t make it obvious enough. The whole room was about being a boy, and when boys were in there, they liked to talk about what was between their legs. George tried never to use it when there were any boys inside. She never drank from the water fountains at school, even if she was thirsty, and some days, she could make it through the school day without having to go once.

The facts underlying the Evancho opinion similarly highlight the harmful impact discriminatory policies have on transgender children at school. As the judge states, “Court cases involve real people and real events,” and so the facts in the opinion reflect the lived experiences of the three students who filed the lawsuit. As the judge recounts, one of these students explained that the exclusionary bathroom policy caused “her serious emotional and other distress, making her feel unsafe, depressed, marginalized and stigmatized…”

Based on the experiences of these three students, and the fact that the school district was unable to support its reasons for implementing the policy, the Court determined that the students would likely succeed on an Equal Protection claim against the school. It applied intermediate scrutiny (meaning that the different treatment between transgender and cisgender students must be supported by “an exceedingly persuasive reason, advance an important governmental interest and have a direct relationship to the important governmental interest furthered by it.”) As a result, the school must allow the plaintiffs to use common restrooms consistent with their gender identities while the lawsuit continues (this is a preliminary injunction).

This is just one federal court of many in this country, but it’s a hopeful sign that perhaps America didn’t completely abandon our Constitutional principles when Donald Trump seized the White House. We shall see.

To read the full opinion, which I highly recommend, please see here (PDF).


*Title IX applies to any educational program that receives federal funding (including both public and private schools), while the Constitution only applies to public entities.

**I inserted “George” at the beginning of the quote because that is the name that appears throughout the paragraph in the novel. However, Melissa is the name the child prefers to use. For more on the recalcitrance of the name “George,” see George or Melissa? It Matters.


  1. Thank you for sharing this information, I’m glad to see that there is still some hope for the constitution in America. Sometimes I wish that every person who opposes transgender bathroom laws would have to spend a week as their non-preferred gender – it would open a lot of people’s minds.

    1. It’s sad that there are people in power with such little empathy for these children. How could Trump’s Justice Department revoke that guidance? Why does anyone feel threatened by a child using a bathroom consistent with their gender identity? It’s frustrating and sad.

  2. So glad to hear about this ruling! I wonder if the Supremes will hear the Gavin Grimm case? And given this ruling it will be interesting to see how it all is argued. I wish these kids didn’t have to go through all these horrible things, that they could just be kids. It really breaks my heart.

  3. This outcry over trans people and bathrooms is similar to the old argument where straight people exhort gays to “just get over it,” assuming orientation is a choice. Majority often rules (though when it comes to human rights, that should never be the case), and that is true when it comes to the LGBT+ community, who will likely always have to fight for rights automatically granted to the het population. Just as women have to continue fighting for equal pay and the right to a safe, legal abortion.

    When will people ever get past this crap? We all pretty much want the same thing: to live our lives in peace.

    1. Well said. The Court seemed to understand the points you’ve made. I highly recommend reading the opinion, which states:

      “The record reveals that the Plaintiffs appear to have as their principal goal living and attending school in about as unexceptional a way as is possible.”

      “The Plaintiffs appear to the Court to be young people seeking to do what young people try to do every day-go to school, obtain an education, and interact as equals with their peers.”

      The Court also specifically states that a school district’s constitutional duties (and people’s rights!) aren’t up to a popular vote, which might be my favorite part of the whole opinion (pages 31-32):

      “The Court is certainly in no position to conclude that a school board should be inattentive to the expressed educational preferences of parents and students [the people who advocated for the exclusionary bathroom policy] -they plainly should consider such matters in doing their important work as school directors. But that does not resolve the question, because like the Court, those same school directors have sworn fealty to the Constitution and laws of the United States and the Commonwealth of Pennsylvania. If adopting and implementing a school policy or practice based on those individual determinations or preferences of parents-no matter how sincerely held-runs counter to the legal obligations of the District, then the District’s and the Board’s legal obligations must prevail. Those obligations to the law take precedence over responding to constituent desires. The Equal Protection Clause of the Fourteenth Amendment is neither applied nor construed by popular vote.”

  4. This whole “bathroom bill” activity is egregious, mean-spirited, and ill-informed. It is pandering to people who don’t understand transgender realities and don’t want to. I blogged about this when it first raised its ugly head in NC. Thanks for keeping the issue in the light, AMB.

    1. I completely agree with you! The Court does a good job in this opinion of countering the arguments in favor of discriminatory bathroom policies.

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