Judicial wordplay redefines locker room reality

Two courts, one in Pennsylvania and another in Virginia, last week disregarded students’ pleas for privacy in public school locker rooms and restrooms. The judges avoided making any distinctions between the sexes and ruled transgender students should be allowed to use the sex-segregated facilities that affirm their gender identity.

In a highly unusual move, a three-judge panel of the 3rd U.S. Circuit Court of Appeals based in Philadelphia took only 15 minutes Thursday to unanimously deny an appeal by four Boyertown, Pa., high school students seeking an injunction against a school policy allowing transgender students into sex-segregated private spaces. In the other case, G.G. v. Gloucester County School Board, a female student who identifies as male challenged her Gloucester, Va., high school’s policy requiring her to use the restroom that corresponds with her biological sex.

By adopting a subjective meaning of the word “sex,” both courts ruled that those asking for sex-segregated facilities had no claim to protection under Title IX or the 14th Amendment’s equal protection clause. “Sex,” one judge declared, is “complicated.”

Only four minutes into Thursday’s oral arguments in the Pennsylvania case, Doe v. Boyertown Area School District, U.S. Circuit Judge Theodore McKee stopped plaintiffs’ attorney Randall Wenger and forbade him from defining the words “sex” and “opposite sex.”

“When you use the word ‘sex’ you complicate the discussion,” McKee told Wenger. “It’s not that simple. That’s why I use the term transgender boy or girl to try and get around that problem.”

Wenger replied, “Those terms stand in contradistinction because transgender wouldn’t make any sense apart from the terms.” But McKee again interrupted and demanded Wenger use “respectful” words.

“I know, for reasons beyond my comprehension, you don’t approve of those terms, don’t like to use those terms, but it greatly enhances the communication,” McKee said.

It also greatly enhanced the school district’s case. By using subjective terms about biological sex, the school’s attorneys easily avoided acknowledging that the Boyertown policy permits teenage boys and girls to use the same changing facility. In 2016, the year school officials quietly implemented the policy, one of the plaintiffs had undressed to his underwear to change for physical education class before noticing a female student in the locker room who had also partially undressed. Caught literally with his pants down, the plaintiff, a sophomore at the time, was humiliated.

The judges and defense attorneys made light of the plaintiff and the other students’ concerns about bodily privacy. No one expects privacy in a locker room, they said. And no private body parts were exposed during the incident, according to the lawsuit. Students who do not like undressing in front of a “transgender student” can change clothes in a shower or toilet stall, American Civil Liberties Union attorney Ria Ma argued. (Defense attorneys repeatedly avoided acknowledging sex distinctions by using terms like “student,” instead of boy or girl.)

In Virginia, the Gloucester County School Board had allowed transgender student Gavin Grimm to use the restroom of her choice before community members discovered the practice and protested. The board then established a policy requiring students use the facilities that correspond with their biological sex.

Grimm, a female student who identifies as male, sued the school district in 2015. The U.S. Supreme Court had agreed to hear the case until last year, when the Trump administration rescinded an Obama-era regulation requiring all publicly funded schools to accommodate transgender students. After the policy change, the Supreme Court sent the case back to the U.S. District Court for Eastern Virginia. On May 22, U.S. District Judge Arenda Allen denied the school district’s motion to dismiss the case.

In the three years since Grimm sued, rulings in similar cases have held that excluding transgender students from the private facilities of their choice on campus may subject the schools to discrimination lawsuits under Title IX and the equal protection clause, Allen said. Although not bound by those decisions, she cited them anyway to bolster her decision for Grimm.

In making an argument for classifying transgender persons as a quasi-suspect class, Allen declared, “Transgender is immutable.”

The Gloucester County School Board has not indicated whether it will again appeal.

The plaintiffs in the Pennsylvania case could appeal to the full 3rd Circuit, where Wenger hopes he can define the terms at the heart of the case.

“A proper meaning of ‘sex’ and ‘opposite sex’ is critical to understanding the rights involved,” Wenger told me. “Everything starts to become very illogical once terms like sex, boy, and girl turn on gender identity.”

Thou shalt not …

Last year, a mentally ill man temporarily delayed the installation of a Ten Commandments monument on the Arkansas Capitol grounds in Little Rock by driving his car into the structure. The American Civil Liberties Union and others want to permanently remove the display, using less violent means.

Almost four weeks after the April 26 dedication of the destroyed monument’s replacement, the ACLU filed suit on behalf of four women whose biking and walking routes take them near the structure. They call it a “government-sponsored religious shrine,” according to an ACLU statement.

A separate group of plaintiffs that includes atheists, a rabbi, a Methodist minister, and a wiccan made a similar argument in a lawsuit. Both legal challenges claim the monument and the 2005 law providing for its placement on public property are unconstitutional.

Fighting the ACLU in these cases can prove costly. The city of Bloomfield, N.M., lost its six-year fight with the ACLU over its Ten Commandments display when the U.S. Supreme Court refused in November to hear the case. That let stand a lower court ruling ordering the monument removed. The city is now trying to raise $700,000 in legal fees it owes the ACLU after losing the case. —B.P.

Trump loses Twitter fight

A U.S. district judge in New York last week declared portions of the @realDonaldTrump Twitter account a public forum from which disagreeable Twitter followers cannot be blocked.

The decision on Wednesday ventures into new legal territory where social media and First Amendment rights converge. The seven plaintiffs, all blocked from following President Donald Trump on Twitter, claimed the virtual banishment prohibited their engagement with the president and his 52.2 million followers.

U.S. District Judge Naomi Rice Buchwald agreed: Blocking followers for what they say is “viewpoint discrimination” and a violation of the First Amendment of the U.S. Constitution.

But Buchwald denied the plaintiffs’ request to force Trump to unblock them, calling it “unnecessary to enter that legal thicket at this time.” She added, “A declaratory judgment should be sufficient, as no government official—including the president—is above the law, and all government officials are presumed to follow the law as has been declared.” —B.P.

Seniors win right to hold Bible study

Residents at a Bakersfield, Calif., retirement community won assurances from their homeowners association that their Bible studies and Sunday morning worship services may continue unabated. The threat of a lawsuit in 2016 spurred the association to allow the meetings to continue after a brief suspension, but leaders warned they had the authority to shut down the services and classes at any time.

A complaint from an atheist resident in 2016 prompted the association to suspend the weekly meetings attended by about 100 residents of the Solera at Kern County development, according to the Pacific Justice Institute, the non-profit legal firm representing the residents in mediation with the association to resolve the conflict. —B.P.