Aidan DeStefano says he only recently began using the male facilities at Boyertown Area Senior High when an anonymous student sued the entire Pennsylvania school district over their transgender-inclusive restroom policy.
“This school year I started using the male facilities at BASH,” DeStefano, an 18-year-old senior and boys’ cross country team member, wrote in a court declaration accompanying the ACLU’s new motion to intervene in the case (PDF). “That feels so good—I am finally ‘one of the guys,’ something I have waited for my whole life.”
But if the U.S. District Court of eastern Pennsylvania were to rule in favor of “Joel Doe”—the anonymous student whose parents brought last month’s lawsuit against the Boyertown Area School District—then transgender BASH students might have to wait until after graduation to experience that feeling.
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And for DeStefano—who has already started testosterone therapy, changed his birth certificate, and undergone a bilateral mastectomy—the thought of using the girls’ room makes no sense at all.
“I could not go back to using the female facilities any more than any other male student could,” he wrote in the declaration. “It would be distressing for me to do so. And it would be deeply uncomfortable for everyone.”
For the last few months, the country has been getting to know Gavin Grimm, the Virginia transgender boy who sued his school district after they required him to use an “alternative” restroom.
But after the Supreme Court punted on his case—citing President Trump’s February withdrawal of the Obama administration’s transgender student guidance—the frontlines of the endless bathroom debate have been shifting back to the state and local level.
First, Juliet Evancho, the transgender sister of the young performer who sang the national anthem at Trump’s inauguration, won a preliminary injunction against her Pennsylvania’s school district’s decision to ban her from the girls’ facilities. And now, this new Pennsylvania case has all of the ingredients for the next major bathroom showdown: the Alliance Defending Freedom, a Christian law firm that has drafted model anti-transgender legislation, and the ACLU, which represented Grimm, potentially colliding over a single school district.
In the original complaint brought against the Boyertown Area School District last month, the “Doe” family—represented by lawyers from the ADF and the Independence Law Center—allege that “Joel Doe” saw a “member of the opposite sex changing with him in the locker room” during his junior year at BASH and that this unnamed student “was at the time wearing nothing but shorts and a bra.”
The complaint consistently misgenders this unnamed transgender student, using female pronouns throughout. (DeStefano is certain it’s not him “because I do not wear a bra and did not wear one in October of 2016,” as he noted in his court declaration.)
“Joel Doe experienced immediate confusion, embarrassment, humiliation, and loss of dignity upon finding himself in this circumstance and quickly put his clothes on and left the locker room,” the complaint reads.
The complaint goes on to allege that the school district held firm on the policy, insisting “that [‘Joel’] must change with students of the opposite sex, and make it as natural as possible, and that anything less would be intolerant and bullying against students who profess a gender identity with the opposite sex.”
The “Doe” family is seeking damages for alleged violations of their son’s privacy and of Title IX, as well as a permanent injunction against the school district’s restroom and locker room policy.
In a subsequent statement (PDF), the school district noted that it “contests the claims and will appropriately respond and defend its actions that we believe were consistent and compliant with the law,” citing the ruling in the Evancho case.
And in a follow-up FAQ about the decision to maintain the transgender-inclusive policy (PDF), the district claimed that the unnamed transgender student wears his gym clothes underneath his regular clothes on gym days, “[using] the locker room only to change out of and then back into his street clothes, while never removing his PE uniform.”
The “Doe” family’s insistence that the restroom policy be reversed has since drawn the attention of the ACLU, which filed a legal motion last week to defend the school district on behalf of DeStefano and the local LGBT youth organization Pennsylvania Youth Congress.
If the judge allows them to be named as defendants in the lawsuit, we could see a dramatic judicial face-off between the ADF and the ACLU in the middle of a heated culture war.
“That’s one way to look at it,” said Mary Catherine Roper, deputy legal director for the ACLU of Pennsylvania in a phone interview. “I will tell you my clients don’t think of it that way because it’s their lives. For them, it’s very personal.”
For the ACLU, Roper says, deciding to participate directly in the lawsuit rather than simply filing an amicus brief was about ensuring that the judge in the case heard from students who would be directly affected by a reversal of the restroom policy. “You’re deciding about these transgender students’ lives,” Roper says. “You should hear from them. They should be a part of this conversation.”
DeStefano himself was unavailable for an interview due to his school and work schedule. In his court declaration (PDF), however, he states that “there is never any reason for a student as BASH to undress in front of other students” if they don’t want to, citing the existence of toilet stalls and “changing cubicles with curtains” in the locker room areas. That’s why he opposes the idea that transgender students should use separate facilities as Gavin Grimm, for example, was told to do.
“[T]o be told that I am required to use separate facilities than those used by the other boys, including my teammates, would be humiliating and stigmatizing,” he said. “That would send the message to all transgender students—and our classmates—that we are not fit to be among our peers.”
DeStefano says that he has been accepted at BASH and was “even elected to the homecoming court by my fellow students” but that he fears for “the transgender students who will come after me.”
In a statement to The Daily Beast on the ACLU’s involvement, ADF legal counsel Kellie Fiedorek wrote: “It’s unfortunate that the ACLU continues to support school policies that violate children’s legal rights and force boys and girls to shower and undress together in intimate facilities. Their efforts across the country brazenly disregard the feelings, rights, privacy needs, and dignity interests of all students. A more compassionate and lawful response would be to counsel schools to protect every child’s right to privacy.”
The Independence Law Center attorneys named on the “Joel Doe” complaint did not immediately respond to an emailed request for comment, nor did the legal counsel for the school district. In a public statement (PDF), however, Boyertown Area School District Superintendent Dr. Richard Faidley said that they “respect and welcome” the ACLU’s motion to intervene in the case.
That motion has not yet been granted and there is still time remaining for the ADF or other legal representation to oppose it. DeStefano, for one, is itching to get involved.
“I want to be part of this lawsuit because for me there is something very personal at stake,” he wrote. “I have worked very hard to bring my life into alignment and I cannot stand aside while my dignity and ability to fully participate in school life are under attack.”
