A Pennsylvania teen is suing his school district for causing him “anxiety, embarrassment, and stress” for having to share a locker room with a transgender student, a case that flips the script on the “bathroom debate” playing out across the country.
The case is the latest in a new legal approach for Christian groups fighting against trans-friendly policies: claiming that cisgender students are suffering as a result of having to share facilities such as bathrooms and locker rooms with their transgender peers.
The suit, filed against the Boyertown School District in eastern Pennsylvania, describes what happened to the male student, identified as Joel Doe: “When he was standing in his underwear about to put his gym clothes on, he suddenly realized there was a member of the opposite sex changing with him in the locker room,” the complaint says. “Who at the time was wearing nothing but shorts and a bra.”
The complaint appropriates language from legal arguments for why trans kids should be protected under Title IX. For example, attorneys representing Doe say that “the anxiety, embarrassment, and stress he feels as a direct result of [the school district’s] practice… has caused him to refrain from using restrooms.”
One of the two firms representing the plaintiff, the Alliance Defending Freedom, is a powerhouse of conservative Christian advocacy that has litigated some of the biggest sociological issues of the last two decades. The group has represented employers that don’t want their healthcare plans to cover contraception, school districts blocking LGBT advocacy sites, and photographers who didn’t want to shoot a gay couple’s civil ceremony.
In 2000, the group represented Boy Scouts of America when it revoked Eagle Scout and assistant scoutmaster James Dale’s membership when they discovered he was gay and a gay rights activist, saying that homosexuality was “inconsistent” with the organization’s core values. The case went all the way to the Supreme Court, and Boy Scouts, represented by attorneys from the group, won.
With more than 3,000 allied attorneys and an annual budget of nearly $50 million — in part thanks to generous donations from foundations associated with the family of Education Secretary Betsy DeVos — Alliance Defending Freedom means business, and in the last year, according to a spokesperson, have waded into the latest battleground: bathroom access for trans kids.
The group is currently working on two other lawsuits involving high schoolers who oppose their school district’s’ transgender-friendly policies. Attorneys with the Alliance say that those policies violate their clients’ civil rights by subjecting them to the indignity and humiliation of sharing facilities with their transgender peers.
One suit, filed in the Northern District of Illinois, represents a group of parents and their children who are challenging the district’s policy. Named defendants are the school board and Obama-era officials who issued guidance saying that trans kids were protected under Title IX in federally funded schools (that guidance has since been revoked by the Trump administration). The second case, in Minnesota, involves similar circumstances.
Those cases, like Joel Doe vs. Boyertown School District, also highlight language used to argue the case for protecting trans kids under Title IX, citing the indignity, stress, or fear they suffer on a day-to-day basis. In the Boyertown case, attorneys say that their client avoids using the restroom for long periods so as to avoid encountering a transgender peer. Similarly, the Illinois case describes “humiliation, anxiety, fear, apprehension, stress, degradation, and loss of dignity” suffered by female high schoolers as a result of having to share facilities with trans students, particularly at a time in their lives when they are most “shy, embarrassed, and aware of their bodies.”
Eric Rothschild, senior litigation counsel at Americans United for Separation of Church and State, says by focusing on the alleged harm on students, the Alliance is obscuring its real agenda. “It is not uncommon for organizations like [Alliance Defending Freedom] to assert views that arise from religious principles, to instead, try to litigate using more neutral terms, so that their efforts to have state actors like schools impose religious views is not explicit,” he said
“This is a new frontier for the country, and so these lawsuits by their very nature are going to be new,” said Kerri Kupec, legal counsel and the Alliance’s director of communications. “This is not something we’ve really ever seen before.”
Kupec said that if their legal argument resembles that of trans student advocates, it’s only because they feel like non-trans students were not being heard. “We want to be an advocate for their voice and their feelings,” Kupec said. “I don’t see it as a religious freedom issue.”
Last March, an attorney with Alliance Defending Freedom testified in support of a so-called bathroom bill — which proposes requiring transgender residents to public facilities that accord with the sex they were assigned at birth — in South Dakota. They may also be influencing policy; Mother Jones compared four bathroom bills in Minnesota, Nevada, Kansas, and North Carolina to model legislation written up by the group, and found striking similarities in their language.
Meanwhile, according to the Human Rights Campaign, the Alliance “literally wrote the original language for discriminatory same-sex marriage bans in Idaho (2005), Colorado (2006), and South Carolina (2006).”
The Alliance’s social war isn’t limited to the United States. It touts itself as an “international organization,” and has offices from Bulgaria to Mexico City to New Delhi. One recent international success, according to their website, involved working to overturn a hate speech conviction for a pastor in Sweden who likened homosexuality to “cancerous tumors” in his sermons.