On Monday, July 17, 2017, the United States District Court for the Eastern District of Pennsylvania held a hearing on the case Doe v Boyertown Area School District which began with the following opening statement made by Randall Wenger, Chief Counsel for the Independence Law Center. The opening statements reads as follows:
May it please the court.
This case involves an issue of great public concern, our longstanding expectation of privacy in the most intimate settings like locker rooms and restrooms.
We have long maintained separate spaces for men and women based on our biological differences that express themselves in our anatomical differences. We have these spaces not merely because our anatomy is often revealed in the common areas of these spaces, as the evidence will reflect, but also because of the vulnerability and embarrassment that we would feel in the presence of the opposite sex when engaged in very private functions.
This is not the first time the issue of opening up personal facilities was raised. In 1975, when writing a commentary for the Washington Post regarding the proposed Equal Rights Amendment, Justice Ginsburg stated with regard to the contention that restrooms would be opened to both men and women:
“Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy. Individual privacy, a right of constitutional dimension, is appropriately harmonized with the equality principle.”
The universality of this expectation is reflected in Pennsylvania law that requires separate privacy facilities for men and women in all kinds of settings, including in our schools for the benefit of our children. And this societal norm is reflected in court cases across the country and here in the Third Circuit dealing with the constitutional right of bodily privacy, sexual harassment, and the tort known as the invasion of seclusion.
This is such a deeply experienced expectation, that we even recognize the right of bodily privacy for those who are incarcerated and in cases dealing with searches. How much more in a situation like this with our children that we entrust into the care of our schools?
I want to be clear, of course, that we don’t have the same level of expectation of bodily privacy when it comes to persons of the same-sex. That’s why we have locker rooms, showers, and restrooms designated for men and for women, because we expect privacy from the opposite sex that we don’t expect from the same-sex.
Despite this shared experience and these constitutional and statutory principles, the evidence will reflect that my client, Joel Doe then a 17 year-old Junior at the Boyertown Area High School, found himself in the boys’ locker room with a girl.
As he was changing–standing in his underwear–he looked behind him to see a girl, wearing nothing above her waist other than a bra. Shocked and embarrassed, he and some other students went to see assistant principal Wayne Foley.
Principal Foley explained to the boys that the school was now allowing girls who identify as boys to use the boys facilities. Joel asked if there was any way to be separated out of the situation, and he was told to tolerate it. And the assistant principal told him to make the situation as natural as he possibly could.
There is nothing natural about telling our boys and our girls to change together for gym class. The evidence will reflect that students change in both locker rooms and restrooms. Students not only see each other without their pants or shirts, but also without their underwear and bras.
Telling someone that they need to change with persons of the opposite sex is sexual harassment. And it’s similarly sexual harassment to fail to protect students when the school knows that — pursuant to its stated practice — student’s bodily privacy is being violated.
Prior to the 2016-17 school year, the Boyertown Area School District separated locker rooms and restrooms on the basis of biological sex. But the school changed this practice at the beginning of the 2016-17 school year. Now any student who identifies with the opposite sex may use the bathroom and locker room of the opposite sex.
There is no requirement that a student’s anatomy change before using such a facility. In fact, the record will reflect that Dr. Cooper, the high school principal who enforces this practice in the high school, stated that he’s not aware that any student has altered their reproductive anatomy.
There is no criteria other than the desire of the student. In fact, students who identify with the opposite sex may continue using the facilities of their biological sex. The school board ratified this practice in May of this year.
In light of the school’s practice, it should come as no surprise that Joel’s experience is not the only example. Though Joel stopped using the locker room, a week after his incident, Jack Jones found himself in the same locker room, with no pants on, standing next to the same girl. Mary Smith walked into a bathroom to find a boy.
All the plaintiffs have made some kind of adjustments. Joel has stopped using the boys’ locker room. They all limit bathroom use because of the fear of doing so with a student of the opposite sex. Mary Smith has decided not to return to Boyertown next year if the school’s practice continues.
Intervenors intend to put on expert testimony that school privacy facilities must be used to affirm an individual’s perception of their gender. Intervenor’s expert is not taking into account the effect on other students who suffer either the loss of their privacy or ridicule for seeking privacy. And as the science behind this is controversial and not well settled, it is not at all clear the effect on those this is intended to help.
We plan to put on evidence through our own expert that suggests that it is not in the best interest of either transgender students or the remaining students to share private facilities in this way. Of course we all want respect shown to all our students — regardless of what sex they identify with. But the solution is not to subject our children to sexual harassment or to force them to waive their right to bodily privacy in order to use the locker rooms or sex designated bathrooms.
They need not undress together to show respect. We can do better.
Plaintiffs seek a preliminary injunction to return to the school’s former practice of separating bathrooms and locker rooms on the basis of biological sex.