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Attacks on Transgender Students Under the Guise of Privacy Will Not Stand

James Van Kuilenberg
James Van Kuilenberg
Shayna Medley,
Skadden Fellow,
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October 20, 2017

In June, the Frederick County school board in western Maryland passed and updated policies addressing discrimination, harassment, and bullying of transgender and gender non-conforming students. These policies, among other things, affirm students’ right to access restrooms and locker rooms consistent with their gender identity. But in August, a parent and student sued the school district, claiming that their privacy rights are being violated by the policy.

Today the ACLU filed a motion to intervene on behalf of James van Kuilenburg, a transgender student in Frederick County, to defend the school board’s policy and stop members of the community from attempting to disrupt his and other trans students’ education by taking away their right to be treated with dignity as the gender they are. As van Kuilenburg explained, the policy “gave me the ability to finally be myself and access all parts of my education.” The consequences of being forced to go to school while being barred from boys’ facilities would be “devastating,” he said. “There is an epidemic of trans students feeling unsafe, depressed, and suicidal,” and a reversal of the policy would “create a culture of fear and misunderstanding.”

Yet it’s the opponents of trans equality who say they’re the aggrieved ones, claiming that their right to privacy and freedom from discrimination is infringed when a transgender individual enters single-sex spaces. In school districts across the country, including similar ongoing ACLU cases in Illinois to Pennsylvania, trans youth are under attack.

These attacks on trans rights, however, are factually and legally without merit. Experts in law enforcement and gender-based violence have concluded time and time again that discriminating against transgender people does not make anyone safer. On the contrary, excluding transgender people from public spaces consistent with their gender identity can have dire consequences for their health and wellbeing, especially for young people.

Fortunately, the courts are recognizing the frivolity of these claims. In April, we intervened in a similar case in Boyertown, Pennsylvania, to defend transgender students’ right to use public spaces and pursue education free from discrimination. In that case, the court issued an important ruling in our favor. The Boyertown court recognized that “high school students… have no constitutional right not to share restrooms and locker rooms with transgender students whose sex assigned at birth is different than theirs.” The court found Boyertown Area High School already had sufficient privacy protections for uncomfortable students and could not single out transgender students for disfavored and unlawful treatment in response to the discomfort of a small group of students.

The student and parent in Frederick County filed suit under an even more tenuous theory. In this case, the plaintiff is a cisgender girl who has alleged she was videotaped in the restroom at school by another cisgender female student. Somehow, the student has alleged that this violation of privacy will be remedied by excluding transgender students from the restroom and other single-sex facilities and programs. Even more bewildering, this far-fetched theory is being raised in a context where she has not alleged ever encountering a transgender student at school, let alone in the restroom.

We can’t let this kind of fear-mongering stand. Like the plaintiffs in Boyertown, the cisgender student in Frederick County is not asking for increased privacy. Rather, she is demanding the right to change and use the restroom in spaces that excludes her transgender peers.

The Boyertown court appropriately recognized that the mere presence of transgender students in school locker rooms and restrooms does not violate anyone’s right to privacy. According to the judge, the existence of private stalls and changing areas in the school facilities already demonstrated that administrators took privacy into consideration. Furthermore, cisgender students who were uncomfortable even sharing space with transgender students could utilize separate single-user facilities. During the hearing, a medical expert testified that adolescent discomfort with nudity could happen to anyone, anywhere, regardless of their gender. As the court concluded, there is nothing offensive or invasive about the presence of transgender students in communal restrooms and locker rooms. Indeed, many courts have recognized schools must treat transgender students consistently with their gender to comply with federal law.

The decision in Boyertown is an important victory as opponents continue to launch attacks on transgender students through the guise of privacy. The message from Boyertown is clear—this harmful and unfounded reasoning will not stand. That’s why we’re standing up for trans students in Frederick County, and we will continue to stand up for trans youth wherever they are being targeted.

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