On 22 March 2017, Fox News opinion columnist Todd Starnes reported that the Boyertown Area School District (BASD) in southeastern Pennsylvania had ordered a “boy to ‘tolerate’ undressing with girl and make the act seem ‘natural'”:
A teenage boy was told by school leaders that he had to “tolerate” undressing in front of a female student and to make it as “natural” as possible, according to a blockbuster lawsuit filed in a Pennsylvania federal district court.
The lawsuit, filed [21 March 2017] by Alliance Defending Freedom and Independence Law Center, alleges the Boyertown Area School District shamed the teenage boy and violated his personal privacy. They are also alleging sexual harassment.
“No school should rob any student of this legally protected personal privacy,” ILC attorney Randall Wenger said. “We trust that our children won’t be forced into emotionally vulnerable situations like this when they are in the care of our schools because it’s a school’s duty to protect and respect the bodily privacy and dignity of all students.”
In the case of “Joel Doe” – they clearly ignored that duty.
Last Fall, the teen boy was standing in his underwear inside a locker room at Boyertown Area High School preparing to change for a physical education class.
“He suddenly realized there was a member of the opposite sex changing with him in the locker room, who was at the time, wearing nothing but shorts and a bra,” the lawsuit states.
The boy, along with several of his classmates reported the incident to Assistant Principal, named as a defendant.
“Dr. Foley indicated that the legality was up in the air but that students who mentally identify themselves with the opposite sex could choose the locker room and bathroom to use, and physical sex did not matter … Dr. Foley told Joel Doe to ‘tolerate’ it and to make it as ‘natural’ as he possibly can … “The District’s directive to Joel Doe was that he must change with students of the opposite sex, and make it as natural as possible, and that anything less would be intolerant and bullying against students who profess a gender identity with the opposite sex,” the lawsuit states.
As the boy got up to leave the office, the assistant principal allegedly told the youngster to again “be as natural as possible.”
On the same day Starnes’ piece was published, BASD issued a statement providing their side of the case. Superintendent Dr. Richard Faidley asserted that BASD learned of the lawsuit via a press conference, that the student in question was offered “reasonable and appropriate alternatives” to sharing a locker room with a transgender student, and that the district was “following the law of the land”:
On March 21, 2017, The Boyertown Area School District (BASD) received a Demand Letter, along with a copy of a filed, but not yet served, lawsuit in Federal court. Lawyers representing the plaintiff, a BASD student (who shall remain anonymous) and his guardians, presented the documents to the District’s solicitor. The assertions, which include a claim for money damages, include allegations that the District had violated the student’s right to privacy by failing to restrict the use of its bathrooms and locker rooms to either male or female students. According to the claims, the District could not by law permit a transgender student to use any facility, such as a bath or locker room, designated for males or females.
The District, which only learned of the lawsuit and Demand Letter after the plaintiff’s attorneys held a news conference, contests the claims and will appropriately respond and defend its actions that we believe were consistent and compliant with the law. However, it also believes it is important that every student, parent and guardian, and the community at large, know the facts about its policy and practices to ensure an educational environment for everyone that is free of any form of discrimination.
The BASD is firmly committed through our words and actions to treating every student, and member of our community with respect, dignity, and sensitivity in accordance with all applicable laws. The administration and staff, contrary to the allegations, offered the student-plaintiff reasonable and appropriate alternatives when he voiced opposition to changing in a designated male locker room being used by a transgender student. We also discussed those options with his guardians, explaining that at the time we were following the law of the land. Even though the Federal government’s position has changed since then, we are now guided by a recent Federal court ruling in a Pennsylvania case, and await additional guidance from the State of Pennsylvania.
Working with our solicitor, and seeking guidance from authorities that include the Pennsylvania Department of Education, the administration and School Board continues to focus on our mission and meeting the educational needs of all individuals.
As our nation struggles to balance the rights of individuals and groups regarding this challenging but very real issue, we ask all students, parents and community members to treat each other with the same degree of respect, dignity, and sensitivity. We are committed and confident that working together we can reach a satisfactory resolution that is consistent with our mission “to enable all students to succeed in a changing world.”
We thank all parties in advance for their cooperation and understanding as we work together to move forward as one District.
Philadelphia-area television station KYW reported that the group representing the anonymous BASD student was the Alliance Defending Freedom (ADF), a controversial legal group whose focus includes litigating cases in opposition to gay and transgender rights:
The Alliance Defending Freedom, a self-described conservative Christian organization that “advocates for the right of people to freely live out their faith,” said in a statement that the student and his parents are suing Boyertown Area School District for sexual harassment and violation of his personal privacy.
Lawyers who filed the lawsuit in Philadelphia federal court say their goal is to get the Boyertown Area Senior School District to “reverse their policy of opening the boys’ locker room to biological females who identify as male”.
Philly.com noted that the Boyertown case was filed one month after a federal judge had ruled in favor of transgender students attending a separate Pennsylvania school district, who sough to use bathrooms that correspond with their gender identities:
[In February 2017], a federal judge ruled in favor of three Pennsylvania transgender students who sued their school district over a bathroom-choice policy they say violated their civil rights.
The ruling granted a preliminary injunction to the students at Pine-Richland School District near Pittsburgh and effectively ensured they will be able to use the bathroom corresponding with their chosen gender identity as their case proceeds through the courts.
ADF’s 21 March 2017 complaint acknowledged (as the district maintained) that the student in question was not actually “forced” to undress next to a transgender boy, but was permitted to change in a separate facility:
Page 30 of the complaint also reiterated the lawsuit’s goal of barring transgender students in the school district from using facilities corresponding with their gender identities:
The ADF’s lawsuit followed not only a recent legal decision favoring transgender students, but also the recent issuance of the American Academy of Pediatrics (AAP)’s position on transgender student accommodations (titled “AAP Statement on Protecting Transgender Youth”):
“The American Academy of Pediatrics (AAP) opposes guidance issued last night by the Departments of Justice and Education that eliminates protections for transgender youth in public schools, no longer allowing them to use restrooms corresponding with their gender identity.
“Transgender children are already at increased risk for violence, bullying, harassment and suicide. They may be more prone to depression and engaging in self-harm. These children need acceptance and affirmation, not stigmatization. As a result of last night’s action by the Departments of Justice and Education, the simple act of using the restroom may subject transgender students to further harm. Policies excluding transgender youth from facilities consistent with their gender identity have detrimental effects on their physical and mental health, safety and well-being. No child deserves to feel this way, especially within the walls of their own school.
“The federal guidance withdrawing and rescinding protections for transgender students sends a message of exclusion and intolerance, which transgender students encounter enough of already in their day- to-day lives. The AAP voices our strong opposition to the decision by the Departments of Justice and Education and renews our support for the legal protections offered through Title IX.
“Transgender children should be supported, nurtured and cared for, whether in their homes, in their schools or through policies enacted at the state and federal levels.”