ACLU warns Red Lion school officials about 'risk of liability' in transgender policy

Meredith Willse
York Dispatch

The American Civil Liberties Union of Pennsylvania has called on the Red Lion Area School District to reverse its policy restricting which bathrooms and locker rooms its transgender students can use.

In a letter issued Friday, the organization said the emergency directive passed by the school board Dec. 1 discriminates against students on the basis of sex and is a violation of both the U.S. Constitution and Title IX. Continuing to enforce such a policy, the group said, is "putting the school district at serious risk of liability."

On Thursday, the board postponed a planned forum on the matter, citing "growing security concerns." School officials did not respond to requests for comment Friday on the ACLU's letter, nor have they responded to previous requests.

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The ACLU has a history of suing school districts over alleged discriminatory policies.

As recently as October, the organization filed a federal complaint against the Central Bucks School District over what it described as "a longtime toxic environment" for LGBTQ students.

Red Lion Area School District Administrative Office at Pleasant View Elementary School in Windsor Township, Friday, June 11, 2021. Dawn J. Sagert photo

On Dec. 8, the same day Congress passed a bill protecting same-sex and interracial marriages, Pennsylvania’s Independent Regulatory Review Commission, which oversees various state regulations, signed off on antidiscriminatory definitions. The Pennsylvania Human Relations Commission recommended this because of discrimination complaints in employment, housing, education and public accommodations that the Human Relations Commission receives. They receive about 3,00 to 4,000 relevant complaints each year. 

The ACLU's letter explained how this directive and potential policy violates the students’ rights and listed several federal court cases as precedent for potential legal action. In one case, Grimm v. Gloucester County School Board, the courts denied the school board’s policy for students to use bathrooms based on their biology. 

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It also listed a case, Doe V. Boyertown Area School District, where those who challenged transgender-inclusive school policies lost. 

The ACLU lawyers explained using a bathroom “does not entail exposure to nudity” and curtains can be provided in locker rooms or other routes. 

“What it cannot do is force transgender students to use only bathrooms inconsistent with their gender identity or regulate them to separate restrooms,” they wrote. 

An all gender restroom sign at Archetype Pizza in York City, Thursday, Dec. 8, 2022. Dawn J. Sagert photo

In its letter, the ACLU argued that Red Lion's policy could cause psychological harm and exacerbate gender dysphoria symptoms. These students already are at a higher risk of depression, anxiety and suicide, the letter read. This could cause “long-term negative consequences.” One study they cited by the National School Climate Survey showed that 40% of transgender respondents had attempted suicide.

Making gender neutral bathrooms available is not enough, the ACLU wrote, because it will be noticed by other students.

The lawyers reminded the school board this was not the first time they had intervened in discrimination against transgender students.

In 2013, the ACLU similarly intervened after a transgender boy's name was included on the district's ballot for prom queen — not king — and the school planned to read his birth name during the graduation ceremony.

Red Lion ultimately backed down, allowing the boy to attend prom with his girlfriend and to graduate under his name. 

— Reach Meredith Willse at mwillse@yorkdispatch.com or on Twitter at @MeredithWillse.