Supreme Court May Decide – May Men Shower With Girls?

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Supreme Court May Decide – May Men Shower With Girls? 3rd Circuit OKed Anatomical Males in Female Showers and Locker Rooms 

WASHINGTON, D.C.  (March 20, 2019) –  The Supreme Court may decide, as early as this Friday, whether to hear a case in which the 3rd Circuit upheld a school rule which permitted anatomical males to change clothing and shower with girls; a ruling it has surprisingly refused to make several times, says public interest law professor John Banzhaf, who has won over 100 sex discrimination cases.

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As presented, the 3rd Circuits ruling in Doe v. Boyertown School District seems to pit the great majority of students who don't want their "bodily privacy" to be invaded by having to change and even shower in the presence of people with different genitals, and the interests of transgender students who don't want to be forced to use facilities which do not correspond to their perceived gender identity.

It raises interesting issues because it is brought not by transgender students seeking to assert their interests, but rather by typical students who have concerns that their privacy may be violated if they expose their undressed bodies to persons who are anatomically different.  Although it seems that these two positions are diametrically opposed, there is a readily available compromise position, suggests Banzhaf.

One simple alternative which Banzhaf has advocated would be to abandon the concept that any student claiming to be transgender should be able to use any restroom, locker room, or shower

As an example of the principle, religious beliefs are protected under Title VII by requiring that there be a "reasonable accommodation" to them.  A similar scope of protection is provided by various Religious Freedom Protection Acts [RFPA] which are designed to protect religious interests.

Under them, deeply religious persons are not granted absolute freedom to practice their religious identity and beliefs no matter what the consequences; rather, they are entitled to no more than a reasonable accommodation to them.  As an even better example, a similar reasonable accommodation standard is applied to protecting the interests of those with disabilities under the Americans With Disabilities Act [ADA].

Thus, their fundamental right to enter and use a building is protected, but handicapped students do not have an absolute right to use each and every exit or entrance which may be available to others. Instead, the school need only make a reasonable number of entrances accessible to wheelchair users, notes Banzhaf.

Similarly, a school does not have to provide wheelchair access to all classrooms to adequately protect the rights of students in wheelchairs if there are a sufficient number of wheelchair-accessible classrooms to accommodate the small percentage of wheelchair-using students who do need them.

Using the same standard, providing enough single-user restrooms and individual changing and showering facilities to reasonably satisfy the requirements of the tiny percentage of students who are transgender might adequately protect their rights without opening up all female restrooms to anatomical males who might simply claim to feel female.

Thus, in the context of the Boyertown case, the Court could rule that the school policy does not meet the requirement that the policy be narrowly tailored to meet a compelling governmental interest, especially in view of the alternative of using the "reasonable accommodation" standard.


Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH),

2000 H Street, NW, Wash, DC 20052, USA

(202) 994-7229 // (703) 527-8418  @profbanzhaf

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