Pennsylvania transgender bathroom case splits U.S. appeals court

[July 27, 2018]  By Jonathan Stempel

(Reuters) - Four judges on the federal appeals court in Philadelphia on Thursday urged that body to revisit a key part of its decision to let transgender students in a Pennsylvania school district use bathrooms and locker rooms matching their gender identities.

The judges, all appointed by Republican presidents, said a three-judge panel of the 3rd U.S. Circuit Court of Appeals "went beyond what was necessary" in suggesting that the Boyertown Area School District policy might be required under Title IX, a U.S. law barring gender discrimination by schools that receive federal funds.

They said the entire appeals court should rehear the case, and set out an "appropriately limited rationale for our result."

Non-transgender students have until Aug. 9 to request such a rehearing.

The panel decision had been among a series of recent legal victories for transgender students, even after President Donald Trump in February 2017 rescinded guidance that schools give them unfettered access to bathrooms and locker rooms of their choice.

Boyertown's policy had been challenged by some non-transgender high school students, who said sharing facilities with transgender students would violate their privacy.

On May 24, the panel refused to order a preliminary injunction against the policy, saying the non-transgender students were unlikely to prevail at trial.

Those students then asked the panel or the entire court to reconsider the case, prompting the panel on Thursday to revise its decision.

In that revision, Circuit Judge Theodore McKee maintained that "requiring transgender students to use single user or birth-sex-aligned facilities is its own form of discrimination."

He also said Boyertown "can hardly be faulted" for adopting a policy that "avoids the issues that may otherwise have occurred under Title IX."

The four dissenting judges objected to that language, despite agreeing that the underlying facts "can support the legal conclusion" that a preliminary injunction was unnecessary.

"Reasonable people can and will disagree about the most appropriate way to address transgender students' desire to select which bathroom or locker room facilities to use," Circuit Judge Kent Jordan wrote. "The law does not mandate only one outcome, as the panel opinion suggests."

Randall Wenger, a lawyer who argued the non-transgender students' appeal, in an email pledged to continue advocating their case.

He called the panel decision "out of step with longstanding legal protection for privacy," and said school policies should "respect every student" and account for the "real differences" between boys and girls.

Michael Levin, who represented the school district, did not respond to requests for comment.

The case is Doe et al v Boyertown Area School District et al, 3rd U.S. Circuit Court of Appeals, No. 17-3113.

(Reporting by Jonathan Stempel in New York; Editing by Tom Brown)

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