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Confirmed Judges, Confirmed Fears: Trump Circuit Judge Joins Criticism of Important Ruling Protecting Transgender Student Rights

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“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

A unanimous Third Circuit panel issued a ruling in July protecting transgender students in a Pennsylvania school district against an attack by the right-wing Alliance Defending Freedom (ADF). ADF had argued that a school district policy allowing transgender students to use facilities corresponding to their gender identity was illegal. Trump Third Circuit Judge Stephanos Bibas recently joined a dissent from the entire circuit court’s decision to let that ruling stand.

Although the dissenters did not disagree with the outcome of the panel decision, they strongly criticized it for the “implication” that Title IX requires (rather than simply permits) schools not to discriminate against transgender students regarding locker room and bathroom facilities.

In the case, Doe v. Boyertown Area School Dist.,  ADF claimed that the school district’s voluntary policy violated the Constitution and Title IX of the Education Amendments of 1972, which bans discrimination on the basis of sex in school districts that receive federal funds. The trial court rejected an ADF motion for a preliminary injunction against the policy, finding that ADF was unlikely to succeed on its claims, and a three-judge panel of the Third Circuit denied an appeal. In a ruling by seven judges including Republican-appointed Chief Judge Smith, a motion to have the full Third Circuit reconsider the case was rejected. But four judges, including Bibas, dissented from that denial of rehearing.

The dissenting judges explained that they were not disagreeing with the specific decision to reject a preliminary injunction against the school district’s  policy. Instead, they strongly criticized the panel decision because of what they called its “implication” that it would have been illegal for the school district to require that transgender students use facilities that corresponded to their gender assigned at birth. This claim, the dissenters argued, was “unsupported” and “unsupportable,” and the case should have been reheard so that the allegedly offending  language could have been eliminated.

In fact, the dissenters were wrong on both counts. The panel decision, which had been revised after the rehearing petitions were filed, went out of its way to state that “we need not decide” the issue raised by the school district of whether barring transgender students from using facilities corresponding to their gender identity would violate Title IX. The panel did nothing more than note that such a discrimination claim would have been raised if the school district had barred such use by transgender students, and that the district “can hardly be faulted” for adopting a policy that avoids those issues, particularly since the policy that ADF wanted had been adopted by a Wisconsin school district but later found to violate Title IX by the Seventh Circuit court of appeals.

More disturbing was the dissent’s suggestion that it was “unsupported” and “unsupportable” to claim that requiring transgender students to use facilities corresponding to their gender assigned at birth would violate Title IX. Although the courts are not unanimous on the subject, as the dissent observed, the panel opinion specifically referred to the Seventh Circuit decision that ruled that such a requirement would violate Title IX. Other courts have issued similar rulings, including in the Gavin Grimm case, and that was the interpretation of Title IX adopted by both the Justice Department and Education Department, until it was reversed under the Trump Administration. The claim by Bibas and the other dissenters that such an interpretation is “unsupported” and “unsupportable” is extremely troubling.