What does Pa. and federal law say about transgender student rights?

Meredith Willse
York Dispatch

Two of the largest organizations schools seek guidance from on transgender student rights are providing conflicting information at a time of increased public scrutiny on the subject.

The Philadelphia-based Education Law Center (ELC), which advocates for student civil rights, spoke out last week to refute public statements made by the Pennsylvania School Boards Association (PSBA) describing case law surrounding transgender rights and bathroom use as unsettled.

From the ELC's perspective, two recent federal court cases involving Pennsylvania schools left little room for interpretation when it comes to transgender students using bathrooms and locker rooms that align with their gender identity. The PSBA, however, said there's more gray area left to be resolved.

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Following ELC's criticism of the PSBA, which came amid a public furor over the issue at Red Lion Area School District, the PSBA clarified its position.

“PSBA also acknowledges that it is fair to say that the law seems to be headed in the direction favored by the Education Law Center,” PSBA spokesperson Mackenzie Arcuri said, explaining that the association has been telling the districts this for years. 

Red Lion Area Senior High School after the lockdown was lifted due to a potential gunman was found in the area in Red Lion on Tuesday, Dec. 13, 2022.

Kristina Moon, the ELC's senior attorney, specifically cited Doe v. Boyertown Area School District and Evancho v. Pine-Richland School District court cases as examples in arguing that the matter is already settled. Moon's organization said that schools are obligated to allow LGBTQ students to be their authentic selves and prevent bullying or stigma.

In Doe, a cisgender student claimed in 2017 the school district was violating his privacy by allowing transgender boys to use the same facilities. The district court did not side with the cisgender student. It was appealed, but the judges sided with the other court's ruling. The Supreme Court did not take any action on the case in 2019, leaving the policy standing.

In Evancho from 2017, the school prevented three transgender students from using the bathrooms that correlate with their gender identity. The court ruled against the school's policy because it's actions did not adhere the Equal Protection Clause in the U.S. Constitution.

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Arcuri said Moon is mistaken.

"The court decisions referenced simply do not hold that transgender students have the right to use the bathroom that aligns with their gender identity,” she said.

In the first case, Arcuri said, the court siding in favor of the district’s unofficial policy, which allows transgender students to use facilities that match their gender identity, did not violate the other students’ privacy rights.

In the other case, the court did the first rule against the school’s policy that forbade transgender students to use the facilities that match their gender identity, but the case was then settled before the final ruling. Arcuri said if the court had ruled against the policy, this would have only been in effect for the state’s western district.

Arcuri added the school boards association tells the school districts to work with transgender students and their families, be respectful of their privacy and provide a safe and supportive environment. 

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

PSBA has a webpage outlining the current legal status of these Title IX-related issues but stops short of giving school districts specific policy recommendations. Arcuri said the PSBA doesn’t make recommendations for policies without having a case law or statutory law backing it. 

“If and when there is binding legal precedent for the entire state of Pennsylvania addressing the rights of transgender students to use the bathroom that aligns with gender identity, PSBA will advise districts accordingly and devise appropriate policies,” Arcuri said.

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The National Center for Transgender Equality shares the ELC's take on the law. Children have a right to be called by names and pronouns as their gender identity and should be treated accordingly, the organization said, as well as a right not to be bullied. The students can dress and use bathrooms or locker rooms that correlate with their gender identity. It also believes students have a right to privacy and don’t have to tell everyone they are transgender. 

The U.S. Department of Education confirmed that Title IX protects students from anti-LGBTQ discrimination. A June 2021 statement said the department will enforce the law’s prohibition of discrimination based on sexual orientation and gender identity. 

FILE - Philadelphia's altered gay pride flag is seen outside City Hall on  June 19, 2017, in Philadelphia. Pennsylvania government regulations would be revised with extensive definitions of sex, religious creed and race under a proposal set for a vote on Thursday, Dec. 8, 2022 — a change some Republican lawmakers see as an overreach on a subject they think should not be addressed without legislation. (AP Photo/Matt Slocum, File)

The Education Law Center and the American Civil Liberties Union of PA both sent warning letters to Central Bucks and Hempfield school districts because of the districts' anti-LGBT policies. Central Bucks' policy stops teachers from using students' preferred names and pronouns if the school doesn't have parental consent. Hempfield created a policy that prevents transgender students from performing on teams that correlate to their gender identity. 

Moon said there has been an increase in anti-LGBT policies at local school districts and at the state level. 

Red Lion Area School District made an emergency directive in early December telling students to use bathrooms and locker rooms that match their gender assigned at birth or a gender neutral facility. 

The American Civil Liberties Union joined the fight, sending the board a letter on Friday requesting they stop using the policy. 

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On a state level, Gov. Tom Wolf vetoed House Bill 972 in July, which would have prevented transgender student athletes from playing on teams that correlate with their gender identity

"I have been crystal clear during my time in office that hate has no place in Pennsylvania, especially discrimination against already marginalized youth representing less than half of 1 percent of Pennsylvania's population,” he said, at the time. 

On Oct. 18, Gov.-elect Josh Shapiro tweeted that the state has to expand anti-discrimination laws to protect the LGBTQ, as well. 

“As Governor, I’ll sign a bill to ensure you can’t get fired because of who you love,” he wrote. 

The Human Relations Commission beat him to it by asking the Independent Regulatory Review Commission, which oversees various state regulations, to update the state’s definitions of sex, race and religious creed for employment, education and housing. The review commission passed those terms Dec. 8, on the same day Congress passed a bill that protects same-sex and interracial marriages.

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