On Tuesday, the Supreme
Court denied cert to Doe v. Boyertown Area School District, a case concerning a
gender identity bathroom and locker room policy at a Pennsylvania high school.
In declining to take up the case, The Supreme Court let stand the U.S. Court of Appeals for the 3rd Circuit’s decision, which dismissed the concerns of students who did not wish to share intimate spaces with members of the opposite sex.
As long as this policy
remains in place, the problems with the policy remain too. High school girls
like Alexis Lightcap will continue to have to share women’s spaces with
“I don’t want a man in the bathroom with me. I’m already uncomfortable in my body, trying to grow up,” said Lightcap. “I have a thirteen-year-old sister who goes to this school. I don’t want her going into a bathroom where a male is allowed to just walk in there.”
“I wish that the school
had protected my privacy somehow. It felt like a specific group of people were
protected while the greater population was not,” Lightcap said.
Policies like the one at
Boyertown Area School District leaves girls vulnerable to emotional trauma–or
worse. At a school in Decatur, Georgia, a gender identity bathroom policy
similar to the one at Boyertown enabled a boy who identifies as gender fluid to sexually
assault a kindergarten girl.
Girls deserve to feel
safe and have privacy in women’s only spaces.
Justice Ruth Bader
Ginsburg understood this. When she penned the majority opinion requiring Virginia Military Institute
to admit women, she stipulated that VMI
would need to “afford members of each sex privacy from the other sex in living
Why? As she wrote in an op-ed at The Washington Post while she was a law professor at Columbia, “Separate
places to disrobe, sleep, perform personal bodily functions are permitted, in
some situations required, by regard for individual privacy. Individual privacy,
a right of constitutional dimension, is appropriately harmonized with the
Privacy and equality are
not mutually exclusive. In fact, upholding the former is essential to
preserving the latter—especially for women.
The #MeToo movement is a
prescient reminder that women still face unique social challenges. Taking away
women’s privacy from the male form and the male gaze directly by forcing them
to share spaces with males is a step backwards in the fight for equality.
This problem is not going
anywhere. As Ginsburg pointed out in her VMI opinion, “[p]hysical differences
between the sexes are enduring,” and quoting Ballard v. United States, “[t]he
two sexes are not fungible.”
The difference between
the sexes is here to stay; so too are the problems with gender identity
policies like the one at Boyertown.
Everyone deserves privacy
and safety in private facilities. However, one-size-fits-all policies like Boyertown’s
fail to take into account the very real needs of countless girls.
Better solutions exist.
In the absence of a Supreme Court decision, it is on school administrators to