On Tuesday “Joel Doe,” a high school junior in Boyertown, PA (pop. circa 4,000), sued his school district because a transgender boy is using the boys’ locker room. Boyertown is a 98% white area in Berks County about 50 miles northwest of Philadelphia with a per capita income of $21,194.
Presumably Joel is about 16 years of age. He is seemingly old enough to understand that a transgender boy poses no threat to him. Yet I understand how he might be uncomfortable sharing a locker room with a transitioning trans boy. He seems to have an irrational fear of trans people (I’ll get to that) but the solution is to have him use an alternate facility for changing. Problem solved.
Both parties are at fault for failing to resolve this matter before it ended up in court.
The case is Doe v. Boyertown Area School District. The nominal attorney of record is Cathy R. Gordon of Pittsburgh. Most of her federal record seems comprised of defending asbestos companies. The real lawyers, it seems, are two of the usual suspects — Jordan Lorence and Kellie Fiedorek of the anti-LGBT hate group, Alliance Defending Freedom.
ADF has no interest in resolving this matter to everyone’s satisfaction. They are looking to win a case in federal court whereby accommodating gender nonconforming children in public schools is a violation of federal law. If they win the school district might be unlikely to appeal. If they lose then they are off to the Third District. If they win on appeal then the case becomes precedent.
The lawsuit reflects both the conservative Christian biases of ADF’s lawyers and their disdain for gender nonconforming people. They view gender dysphoria as some sort of character flaw. Alan Sears, ADF’s outgoing CEO, is a zealous Catholic convert and ADF’s complaint embraces conservative Catholic anti-trans themes:
Upon information and belief, Defendants’ policy is grounded in gender
identity theory, which asserts that a person’s subjective perception of their own
“gender” should be more important in every conceivable setting than sex, one’s
biological/anatomical status as either male or female.
No clinician uses the terms gender theory or gender identity theory. ADF’s objective is to disingenuously suggest that the science regarding gender identity is somehow unsettled. That would be news to both the American Academy of Pediatrics and the American Psychiatric Association. Indeed, in science, a theory seeks to explain a scientific fact and that is not ADF’s intended inference. According to the science a trans male is, for all intents and purposes, a male; a trans female is, for all intents and purposes a female. Again this is settled science underpinned by mountains of peer-reviewed research.
They go a step further:
Under gender identity theory, gender is subjectively assumed, not objectively verifiable, exists on a continuum, and is sometimes fluid.
By adopting gender identity theory as the basis for regulating access to
private facilities, Defendants are violating sex discrimination law by not protecting
students based on sex but instead imposing an individual’s subjective perception of
their gender on other students who value their privacy based on anatomical
differences between the sexes.
The first paragraph, above, is factually incorrect. There is nothing theoretical about the existence of gender dysphoria. The idea that “gender is subjectively assumed” is ambiguous and pejorative. Furthermore, clinicians can objectively verify the existence of gender dysphoria. ADF’s intent is to ridicule the science indirectly and in a manner that does not require an independent verification. They are also suggesting that the trans student in question might have whimsically decided to be male one day and might choose to be female the next day. ADF is doing so in order to assert that the student Doe finds so offensive in his presence is not entitled to be there in the first place.
The second paragraph is an attempt to justify a Title IX claim for sex discrimination. Aside from being nonsensical it is ironic because the Obama guidance on gender nonconforming children in public schools was based on Title IX. ADF thinks that they are being clever in using Title IX to prosecute a case against trans kids. More likely this is how they get jurisdiction in a federal court — something that is likely to be challenged.
You will recall that I described Joel’s fear of trans students as irrational. Behold:
Plaintiff has experienced embarrassment and humiliation, both in
terms of being viewed and viewing a student of the opposite sex in a state of
undress and because of the stigmatization and criticism he received from other
students and adults, fueled by the administration’s policy and actions. He also fears
the future embarrassment of meeting students of the opposite sex in the bathroom
when simply relieving himself. He now avoids using the restroom during the school
day because of the ongoing risk of having his privacy violated.
Because of the district’s policy and actions, Plaintiff does not feel
secure in the locker rooms or restrooms that are properly set aside for the exclusive
use of boys to protect their privacy from exposure to members of the opposite sex.
And elsewhere in the complaint:
The anxiety, embarrassment, and stress he feels as a direct result of
Defendants’ practice and actions has caused him to refrain from using restrooms as
much as possible, stress about when and if he can use a given restroom without
running into persons of the opposite sex, and opting to hold his bladder rather than
using the school’s restroom. …
Failing to timely void urine has direct and adverse physiological
effects, and the Defendants’ policy inhibits Joel Doe from timely voiding.
The poor kid is so terrified of, and traumatized by, a gender nonconforming classmate that he cannot pee? Even in a stall in contrast to a urinal? How many trans kids are there in this school? I feel for the kid but he needs both an accommodation and some serious counseling.
We should be having a rational nationwide conversation of gender nonconforming children in public schools. Opposing reasonable accommodations have been religious zealots and Trump who is doing their bidding. Their solution is to litigate and nothing gets resolved.
I partially blame President Obama. When the guidance from the Department of Education became controversial he should have (very publicly) assembled experts in the fields of medicine, education and even religion to present their views in an open forum. I doubt that, say, Cardinal Dolan would have challenged Catholic teaching. After all, it was coming from the pope. But he might have decreased the volume.
Trump is helpless, hopeless and hapless. Were he impeached we end up with Pence who is more deliberately anti-LGBT. We are in for four years of strife because, among other things, there is an insufficiency of federal leadership. Meanwhile this and other similar cases will drag on long into the next presidential term.