A federal appeals court is considering whether a Pennsylvania high school policy that allows transgender students to use the locker room or bathroom that matches their gender identity—rather than their sex assigned at birth—should be temporarily halted or left in place.
During the 2016–2017 school year, a group of four seniors at the high school and one recent graduate asked a federal court in Pennsylvania to issue a preliminary injunction against the policy. They argued the policy violated their 14th Amendment right to privacy; their right to access educational opportunities, programs, benefits and activities under Title IX because they are subject to a hostile environment; and their Pennsylvania common law right of privacy because it is an intrusion on their seclusion while using bathrooms and locker rooms.
The lower court denied the students’ request to stop the policy, saying they did not show that they were likely to succeed with their case and that they failed to show that the policy was causing irreparable harm. Now those students are asking the 3rd U.S. Circuit Court of Appeals in Philadelphia to overturn the decision in Doe v. Boyertown Area School District.
The Litigation Center of the American Medical Association and State Medical Societies joined the American Academy of Pediatrics, the American Psychiatric Association and nearly a dozen other health care organizations in an amicus brief asking the appellate court to uphold the lower court’s decision.
“With appropriated support—including safe and supportive schools—transgender youth can become happy and productive adults who contribute much to our society,” the brief tells the court. “By making schools into places of stress and conflict rather than welcoming spaces, exclusionary policies worsen stigma and discrimination against transgender students, causing myriad harms to their health, safety and overall well-being.”
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Policies that require students to use the bathroom or locker room associated with their biological sex rob transgender people of their personal choice of whether to reveal their trans status, the brief states. The amici tell the court that disclosing one’s status is often anxiety-inducing and fraught and note that “it is critical to a person’s sense of safety, privacy and dignity to have control over when and how the information is shared.”
And the brief notes that studies show that individuals risk harassment or abuse when they are compelled to disclose they are transgender. A 2013 survey done in Washington found that nearly 70 percent of transgender respondents had one instance of verbal harassment in gender-segregated bathrooms; 9 percent said they had at least one episode of physical assault in such a restroom.
Bathrooms a “critical” health issue
The health care profession’s understanding of gender has advanced over the past 50 years, and it now recognizes that being transgender “implies no impairment in judgment, stability, reliability or general social or vocational capabilities,” according to the brief.
The AMA in 2017 confirmed its support for transgender individuals accessing public bathrooms according to their gender identities and Association policy “opposes policies preventing transgender individuals from accessing basic human services and public facilities in line with one’s gender identity.”
Internationally, health care professionals agree that transgender and gender dysphoric patients—people who have clinically significant distress and anxiety from the incongruence between gender identity and the sex assigned at birth—need to live in accordance with their gender identity.
Treatments for gender dysphoria include counseling, hormone therapy, surgical interventions and social transition, which includes using a restroom most consistent with the individual’s gender identity. The AMA Litigation Center and others tell the court that “access to single-sex facilities that correspond to one’s gender identity is a critical aspect of social transition, and thus successful treatment for transgender and gender dysphoric individuals.”
