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:
- More Than a “Bathroom Battle”: The Rights of Transgender Children at School (Aug. 23, 2016); and
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.