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Commentary LGBTQ

Supreme Court Declines to Hear Anti-Transgender Fearmongering Case

Heron Greenesmith

Doe v. Boyertown was brought to the U.S. Supreme Court by Alliance Defending Freedom, a conservative training ground for lawyers around the world.

In a month of constant onslaught against the health and well-being of transgender and gender non-conforming people, news from the U.S. Supreme Court this week offered needed respite. The nation’s highest court announced it would not be reviewing the lower courts’ decisions in Doe v. Boyertown, a case in which cisgender students sued to end the Pennsylvania school district’s transgender-inclusive nondiscrimination policy.

Boyertown was brought to the Supreme Court by the Alliance Defending Freedom (ADF), the ultra-conservative, evangelical-funded legal group behind the Masterpiece Cakeshop v. the Colorado Civil Rights Commission case, in which a baker refused to bake a wedding cake to a same-sex couple; R.G & G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, in which ADF is representing an employer who wishes to discriminate against a transgender employee; and Schwartz v. City of New York, in which a psychotherapist is suing to be able to continue offering harmful anti-LGBTQ “conversion therapy.”

ADF is a training ground (literally) for anti-LGBTQ, anti-abortion lawyers and judges across the globe. It currently claims to have a network of more than 3,000 “allied attorneys” who have participated in ADF’s required 450 hours of training. Media Matters, with the help of Rewire.News data, has identified more than 100 ADF-trained or -affiliated allies in influential government positions. Notable examples include Matt Bowman, who until very recently was deputy general counsel for the U.S. Department of Health and Human Services (HHS), which recently proposed rollbacks to protections for transgender people in health care. There’s also Judge Kyle Duncan, who serves on the Fifth Circuit Court of Appeals after a long career defending Louisiana’s marriage ban and Virginia schools’ anti-trans policies.

While ADF brought the Boyertown case, a handful of ultra-conservative anti-transgender advocates and organizations wrote briefs to the court, asking the justices to review and overturn the lower courts’ decisions upholding the school district’s nondiscrimination policy regarding bathrooms and locker rooms. I wrote in January about how this seemingly disparate group—which included anti-trans feminist advocacy group Women’s Liberation Front; ultra-conservative, anti-abortion, anti-feminist Eagle Forum; anti-LGBTQ Institute for Faith and Family; anti-trans activist Walt Heyer; and the Christian Educators Association—have a shared investment in the comfort of cisgender students at the expense of the health and well-being of transgender students.

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The seeming obsession with trans students’ access to the correct bathrooms and locker rooms is mirrored in what trans writer Parker Molloy described on Twitter as the cognitive bias behind anti-trans advocacy surrounding access to sports. Noticing when trans people succeed at sports and never noticing when they don’t, said Parker, “creates what’s known as an availability heuristic. We overestimate how common something is if it stands out. We apply more importance to it in our minds.” In the case of sports, despite transgender people competing in sports for as long as transgender people and sports have existed (forever), and transgender people openly competing in sports for decades, the current right-wing media obsession with the issue creates a false proportionality in readers’ and viewers’ minds.

This availability heuristic also influences how readers and viewers imagine nondiscrimination policies impacting comfort and safety in bathrooms. With right-wing media, spokespeople, and organizations clamoring about issues of “safety,” readers and viewers may get the impression that nondiscrimination policies do somehow contribute to a decrease in safety in restrooms and changing rooms. But there are two important qualifications to understand.

The first is that the right-wing organizations themselves can’t even produce examples of nondiscrimination ordinances decreasing safety in restrooms and changing rooms. If they could, they would be trumpeting those examples via every available channel.

In an email to supporters the day the Supreme Court announced it would not be taking the Boyertown case, ADF characterized the cisgender student who thought she saw someone of a different gender in the girls’ restroom as “shaken and upset” by the experience. I don’t want to minimize being shaken and upset. I have been shaken and upset. But it is a school’s job to make sure that students are safe and have the tools to understand why we as a society protect certain people from discrimination and harassment. Given the school’s policy regarding transgender students, I’m going to assume they did exactly as they should have in this circumstance: helped the cisgender student understand that everyone has the right to pee safely, and offered her the single-stall bathroom so she feels comfortable.

The second qualification to the right-wing bathroom-safety availability heuristic is the math. There are billions of daily interactions between all 25 million U.S. students, 150,000 of whom are trans, between the ages of 13 and 17. Students take classes together, eat lunch together, go on trips together, and yes, use the bathroom and change for sports at the same time. Add that to your availability heuristic.

Among those myriad possible interactions, the one that ADF chose to highlight was a student who was “shaken and upset.”

There is no crisis of safety or comfort for cisgender students.

But there is a crisis of safety for transgender students, 85 percent of whom were harassed or assaulted at school because of their gender and 80 percent of whom said they’d avoided bathrooms because they felt unsafe or uncomfortable.

There are structural ways to make sure that everyone using the bathroom and the changing room is comfortable (let’s start with stall walls that touch the floor, people), but the Court’s decision this week to let the school district’s policy stand recognizes that safety means transgender people must be able to use the restroom that matches their gender.

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