About Johanna Bear

Johanna Bear is a Communications Associate at the Pennsylvania Youth Congress. She is a recent graduate of Carlisle High School.

Anti-Trans Federal Lawsuit Filed Against Boyertown Area School District

A federal lawsuit was filed today to block trans-inclusive practices at the Boyertown Area School District in Southeastern Pennsylvania.

Two faith-based organizations, the Alliance Defending Freedom and the Independence Law Center, have sued the school district on behalf of Joel Doe, an unnamed junior at Boyertown Area High School. The organizations are suing Dr. Richard Faidley, the Superintendent of the district, Dr. Brett Cooper, the Principal of the high school, and Dr. E. Wayne Foley, the Assistant Principal of the high school in their official capacities. The complaint states that the plaintiffs are seeking a jury trial to consider requests including compensatory damages and a permanent injunction on trans-inclusive practices in sex-segregated facilities.

The complaint alleges that Doe was in the process of changing his clothes for P.E. class when he realized that a transgender student was changing nearby and experienced “immediate confusion, embarrassment, humiliation, and loss of dignity upon finding himself in this circumstance,” as the complaint alleges.

The other student, identified as ‘female’ in the complaint, was given permission by the school district to use the locker room that they felt best correlated with their gender identity. Doe allegedly went to Dr. Foley, and relayed to him what had happened, at which time he was told to view the events as normal proceedings, a response that the complaint describes as, “marginaliz[ing] and sham[ing]” Doe.

According to the complaint, sex is described as being “fixed at conception, binary, objectively verifiable, and rooted in our human reproductive nature,” despite considerable scientific evidence pointing to the contrary.

The organizations are claiming alleged sexual harassment under Title IX, violation of the right to bodily privacy under the U.S. Constitution, and violation of Pennsylvania’s Public School Code of 1949, which requires separate facilities based on sex. The arguments made to advance these alleged violations are essentially the reverse of the arguments that have been successful in federal courts in support of trans inclusion, such as the Gavin Grimm case from Virginia, which is continuing to work its way through the federal circuit court.

The Alliance Defending Freedom, one of the groups involved in the lawsuit, is listed on the Southern Poverty Law Center’s list of anti-LGBTQ hate groups for having “regularly demonized LGBT people, falsely linking them to pedophilia, calling them ‘evil’ and a threat to children and society, and blaming them for the ‘persecution of devout Christians.’” The other group, the Independence Law Center, claims that it “defends human life at all stages and the right to freely exercise religion.”

As a result of the Trump administration’s decision to rescind the “Dear Colleague” letter that provided guidance for schools to protect transgender students, there is a great deal of uncertainty surrounding precedents for recently filed Title IX lawsuits. In February, a federal judge granted a preliminary injunction to three transgender students from the Pine-Richland School District, which will allow them to use the restroom that corresponds with their gender identity as their case progresses through the court system. The nature of this case in Boyertown, however, could jeopardize future victories if the ruling goes in favor of Doe, potentially creating a battleground in the courtroom.

Late Tuesday, the Boyertown Area School District released the following statement to WFMZ 69:

“On Tuesday, March 21, 2017 the Boyertown Area School District received a demand letter from multiple attorneys related to student bathroom use.

A complaint has not been officially served to the Boyertown Area School District. The attorneys have given the district until April 4, 2017 to formulate a response.

Boyertown Area School District is reviewing this matter with our legal counsel and has no further comment at this time.”

The next school board meeting is scheduled for Tuesday, March 28th at 6:30pm.

Pennsylvania Youth Congress Executive Director Jason Landau Goodman said “The school has made reasonable accommodations for anyone who wants more privacy. Yet, this is not really about locker rooms. This is really about how inclusion is realized throughout society and in our schools: are trans people welcome to exist in our communities? Are trans students provided the opportunity to learn, and thrive, in our public schools? The answer must be yes – both under the US Constitution and for people of conscience.”

The Pennsylvania Youth Congress is working directly with students in the district as well as legal agencies at the state and national levels to support the continued inclusion of transgender students in the Boyertown Area School District. The Keystone Student Voice will share more information as it becomes available.

Initial Reports on Boyertown Lawsuit

Boyertown student sues school district over transgender policy (WFMZ 69)

Conservative groups sue school district over transgender student (Philadelphia Inquirer)

Pa. school district sued for allowing transgender student to use locker room (Newsworks)

A High School Boy Just Sued Because He Has To Share Bathrooms With A Transgender Student (Buzzfeed)

Student Sues School District After Claiming He Had To Change In Front Of Transgender Student In Locker Room (CBS Philly)

Boyertown HS student, parents sue school district over locker room privacy (Fox 43)

Rural PA Transgender Second Grader Files Federal Lawsuit

A second grader in Schuylkill County has filed a federal lawsuit in response to discrimination based on her gender identity. The complaint in A.H. v. Minersville School District et al, which was filed on Thursday, alleges longtime anti-trans discrimination by the principal and district administration. Minersville School District is located in rural Schuylkill County, approximately 50 miles northeast of Harrisburg.

In May of 2016, A.H., a transgender student at Minersville Elementary School, filed a complaint of discrimination against her school district through her parents with the Pennsylvania Human Relations Commission (PHRC).  The complaint alleges that A.H. has been “subjected to numerous instances of discrimination and retaliation at the hands of Defendants, [Minersville School District], [Superintendent] McBreen, and [Principal] Yacobacci.”

Despite the school district’s resulting confirmation that A.H. would be able to use the restroom that corresponded with her gender identity, Superintendent McBreen informed A.H.’s mother Tracey Handling that they would not issue any formal policy on trans student access to bathrooms and that it would be handled on a case-by-case basis. As a result there is no official procedure or precedent to protect A.H. or other trans students from any harassment or from the district reverting back to their old practice of forcing students to use a restroom that does not correlate to their gender identity.

According to the complaint, in September 2016 A.H. suffered an injury to her toe by one of her older siblings. Handling wrote to the district to request that A.H. be allowed to wear flip-flops, as the injury prevented her from being able to wear closed toe shoes. Principal Yacobacci allegedly responded by reporting the family to Children and Youth Services because of the injury and when Handling asked for reasoning behind the decision, Yacobacci began screaming at her in front of A.H. and other district employees.

Allegedly, Yacobacci had previously forced A.H. to use the men’s restroom on a class field trip and made her wait until all the other students had used the facilities and until the facilities had been searched and cleared prior to A.H. being allowed to use them. As the complaint states, “this action singled out Plaintiff A.H., and made her classmates ask why she was using the boy’s restroom, since she was a girl. A.H. went home upset and was asking her mother why she was singled out and forced to use the men’s bathroom on the field trip.”

Additionally, the complaint alleges that McBreen said that in order to consider allowing A.H. to use the women’s restroom he would be required to write a letter to all other parents in the district to gauge their response, before saying to Handling, “are you ready for all the backlash of this?”

The harm that this discrimination and isolation may be doing to A.H. is unimaginable. In the complaint it is stated that, “defendants have marginalized and stigmatized A.H., based on her sex, gender identity, and transgender status… As a result, Plaintiff A.H. has experienced and continues to experience the harmful effects of being segregated from, and treated differently than, her classmates of the same gender identity, including lower self-esteem, embarrassment, humiliation, social isolation, and stigma.” The complaint goes on to describe gender identity as “a core, defining trait and is so fundamental to one’s identity and conscience that a person cannot be required to abandon it as a condition of equal treatment. Gender identity generally is fixed at an early age and is highly resistant to change through intervention.”

The complaint does not provide an update on the status of the Pennsylvania Human Relations Commission claim.

On Friday afternoon, the federal case was assigned to Senior Judge James M. Munley of the Middle District of Pennsylvania. Judge Munley was nominated by President Bill Clinton in 1998. He is known for famously striking down a local anti-immigration ordinance in Hazleton that would have penalized business owners if they attempted to hire illegal immigrants and punished landlords for attempting to provide them housing.

A.H. v. Minersville is among the first known federal lawsuits in Pennsylvania that seeks to advance the civil rights of transgender students through the judiciary. This case has been filed just a few days after the victory of a preliminary injunction being granted in Evancho v. Pine-Richland School District (in Western Pennsylvania), which blocks enforcement of an anti-trans directive.

We will continue to monitor this case and provide updates on any new information as it becomes available.

UPDATE 3/7/2017: The case is going to be heard by Judge Robert D. Mariani, who was appointed by President Barack Obama in 2011 as a US District Judge for the Middle District of Pennsylvania.