In June, the Frederick County school board in western Maryland passed and updated policies addressing discrimination, harassment, and bullying of transgender and gender non-conforming students. These policies, among other things, affirm students’ right to access restrooms and locker rooms consistent with their gender identity. But in August, a parent and student sued the school district, claiming that their privacy rights are being violated by the policy.
Today the ACLU filed a motion to intervene on behalf of James van Kuilenburg, a transgender student in Frederick County, to defend the school board’s policy and stop members of the community from attempting to disrupt his and other trans students’ education by taking away their right to be treated with dignity as the gender they are. As van Kuilenburg explained, the policy “gave me the ability to finally be myself and access all parts of my education.” The consequences of being forced to go to school while being barred from boys’ facilities would be “devastating,” he said. “There is an epidemic of trans students feeling unsafe, depressed, and suicidal,” and a reversal of the policy would “create a culture of fear and misunderstanding.”
Yet it’s the opponents of trans equality who say they’re the aggrieved ones, claiming that their right to privacy and freedom from discrimination is infringed when a transgender individual enters single-sex spaces. In school districts across the country, including similar ongoing ACLU cases in Illinois to Pennsylvania, trans youth are under attack.
These attacks on trans rights, however, are factually and legally without merit. Experts in and gender-based violence have concluded time and time again that discriminating against transgender people does not make anyone safer. On the contrary, excluding transgender people from public spaces consistent with their gender identity can have dire consequences for their health and wellbeing, especially for .
Fortunately, the courts are recognizing the frivolity of these claims. In April, we intervened in a similar case in Boyertown, Pennsylvania, to defend transgender students’ right to use public spaces and pursue education free from discrimination. In that case, the court issued an important ruling in our favor. The Boyertown court recognized that “high school students… have no constitutional right not to share restrooms and locker rooms with transgender students whose sex assigned at birth is different than theirs.” The court found Boyertown Area High School already had sufficient privacy protections for uncomfortable students and could not single out transgender students for disfavored and unlawful treatment in response to the discomfort of a small group of students.
The student and parent in Frederick County under an even more tenuous theory. In this case, the plaintiff is a cisgender girl who has alleged she was videotaped in the restroom at school by another cisgender female student. Somehow, the student has alleged that this violation of privacy will be remedied by excluding transgender students from the restroom and other single-sex facilities and programs. Even more bewildering, this far-fetched theory is being raised in a context where she has not alleged ever encountering a transgender student at school, let alone in the restroom.
We can’t let this kind of fear-mongering stand. Like the plaintiffs in Boyertown, the cisgender student in Frederick County is not asking for increased privacy. Rather, she is demanding the right to change and use the restroom in spaces that excludes her transgender peers.
The Boyertown court appropriately recognized that the mere presence of transgender students in school locker rooms and restrooms does not violate anyone’s right to privacy. According to the judge, the existence of private stalls and changing areas in the school facilities already demonstrated that administrators took privacy into consideration. Furthermore, cisgender students who were uncomfortable even sharing space with transgender students could utilize separate single-user facilities. During the hearing, a medical expert testified that adolescent discomfort with nudity could happen to anyone, anywhere, regardless of their gender. As the court concluded, there is nothing offensive or invasive about the presence of transgender students in communal restrooms and locker rooms. Indeed, have recognized schools must treat transgender students consistently with their gender to comply with federal law.
The decision in Boyertown is an important victory as opponents continue to launch attacks on transgender students through the guise of privacy. The message from Boyertown is clear—this harmful and unfounded reasoning will not stand. That’s why we’re standing up for trans students in Frederick County, and we will continue to stand up for trans youth wherever they are being targeted.
Learn More About the Issues on This Page
-
Press ReleaseDec 2024
LGBTQ Rights
President Biden Must Veto Defense Bill Attacking Military Families with Transgender YouthPresident Biden Must Veto Defense Bill Attacking Military Families with Transgender Youth
WASHINGTON — The U.S. Senate today passed a version of the National Defense Authorization Act that would ban coverage for gender-affirming care for transgender youth whose parents are active-duty military personnel. The American Civil Liberties Union is opposing final passage of the defense bill over the inclusion of this health care ban and calling on President Joe Biden to veto the bill. Section 708 of the NDAA would prohibit insurance coverage for “medical interventions for the treatment of gender dysphoria” such as hormone therapy and puberty-suppressant medications, which Speaker Mike Johnson says would “permanently ban transgender medical treatment for minors.” The same treatments would be covered by TRICARE for any medical purpose other than treating gender dysphoria, the clinical diagnosis for the psychological distress experienced by transgender people related to their gender identity. “By passing this bill, the House and Senate are forcing thousands of active-duty service members to choose between their careers in the military and the future of their transgender children,” said Mike Zamore, national director of policy & government affairs at the ACLU. “This unconscionable and unjustifiable attack on those families stands in direct contrast to President Joe Biden’s legacy of defending the civil rights of transgender Americans — including when few in his own party showed the courage to do so. President Biden should cement his legacy by vetoing this bill and sending it back to Congress to pass without Speaker Johnson’s last minute health care ban for servicemembers’ kids.” If signed by President Biden, this health care ban would be the first new anti-LGBTQ provision enacted by Congress and signed into law by the president since the enactment of the military’s since-repealed “Don’t Ask, Don’t Tell” policy for LGBTQ servicemembers and the since-repealed federal law barring recognition of same-sex marriages known as the Defense of Marriage Act. It is unknown how many transgender youth are currently enrolled in TRICARE or how many of those enrolled are currently receiving coverage for gender-affirming care. In one 2022 analysis, 2,500 minor patients sought care for gender dysphoria through TRICARE Prime insurance at military or civilian treatment facilities in 2017, and 900 received puberty suppressants or gender-affirming hormones. Earlier this month, the Supreme Court heard oral arguments in a landmark case brought by the ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump on behalf of three families and a medical provider challenging a Tennessee ban on gender-affirming hormonal therapies for transgender youth on the grounds the ban violates the Equal Protection Clause of the U.S. Constitution. -
Press ReleaseDec 2024
LGBTQ Rights
Montana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's LicensesMontana Court Blocks State From Refusing to Correct Sex Markers on Transgender People's Birth Certificates and Driver's Licenses
HELENA, Mont. – A Montana court has granted a preliminary injunction preventing the state of Montana from enforcing policies that bar transgender people from obtaining accurate sex designations on their birth certificates and driver’s licenses. After a prior restriction on amendments of birth certificates was struck down by the courts, in early 2024 the state of Montana enacted a new rule that categorically bars transgender Montanans from correcting the sex designation on their birth certificates. Around the same time, the Montana Department of Justice adopted a policy similarly restricting amendment of driver’s licenses. The plaintiffs challenged these policies in state district court, arguing that they violate various constitutional provisions, including the right to equal protection of the law. In a recent Montana Supreme Court decision, two justices concluded that discrimination on the basis of transgender status – as the state is engaging in here – is a form of sex discrimination that violates the Montana Constitution’s equal protection clause. The plaintiffs, two transgender women, are represented by the American Civil Liberties Union, the ACLU of Montana, and Nixon Peabody LLP. Plaintiff Jessica Kalarchik, a veteran who served in the United States Army for 31 years, said: “After finally being able to live my life openly as the woman I know myself to be, I am frustrated that my birth state, Montana, wants me to carry around a birth certificate that incorrectly lists my sex as male. I live my life openly as a woman, I am treated as a woman in my daily life, and there is no reason I should be forced to carry a birth certificate that incorrectly identifies me as male. Fortunately, the court agrees that this ridiculous policy should not be in effect.” “Once again the State of Montana chose to adopt a draconian policy that is clearly intended to marginalize transgender Montanans, only for that discriminatory action to be blocked by the courts,” said Akilah Deernose, executive director for the ACLU of Montana. “Here in Montana we treasure our right to privacy and to live our lives free from governmental intrusion. The State of Montana clearly has not learned any lessons from the past few years, where courts have repeatedly struck down unconstitutional laws targeting transgender Montanans.” “Forcing anyone to carry documents that contradict their identity unjustly violates their rights to privacy, equal treatment, and not being compelled to convey a government message about their sex that they disagree with,” said Malita Picasso, staff attorney for the ACLU’s LGBTQ & HIV Project. “Such a policy marks transgender people for further mistreatment and discrimination, essentially requiring them to carry papers that out them as transgender any time they need to provide identity documents. Fortunately, the court has refused to allow the state of Montana to subvert the freedom of transgender Montanans to control their own identity as this case goes forward.” In granting the plaintiffs’ motion for a preliminary injunction, the court held, “[i]f the challenged state actions discriminate against transgender individuals on the basis of their transgender status, they also necessarily discriminate the basis of sex.” The state has the option of appealing the district court’s ruling to the Montana Supreme Court, but the underlying case will proceed in district court. A trial has not yet been scheduled. -
FloridaDec 2024
LGBTQ Rights
Keohane v. DixonKeohane v. Dixon
On September 30, 2024, the Florida Department of Corrections rescinded its policy regarding treatment of gender dysphoria, which allowed for hormone therapy when deemed medically necessary, as well as access to clothing and grooming standards that accord with one’s gender identity. Under this new policy, grooming and clothing accommodations have been stripped away, and hormone therapy is not permitted unless an exception is deemed constitutionally required. The ACLU brought a class action challenging the policy. -
IdahoDec 2024
LGBTQ Rights
Robinson v. LabradorRobinson v. Labrador
Two incarcerated transgender women have sued the state of Idaho alleging that HB 688, a 2024 law barring state funding for gender-affirming medical care for transgender people, denies them access to the health care their doctors have prescribed for them and is a violation of their Eighth Amendment right to be free from cruel and unusual punishment. They represent a class of all incarcerated folks within the state of Idaho who face the loss of hormone therapy due to HB 668.