The transgender movement expects Americans to deny the most basic truths about bodily sex and human nature, and whether out of fear or apathy, most acquiesce. But 19-year-old Alexis Lightcap wonât go along. She insists that male and female bodies are different, and that the difference has important consequences for the privacy and dignity of men and women alike. Sheâs prepared to go all the way to the U.S. Supreme Court to make the point.
Lightcap is one of six student plaintiffsâthe only one to go publicâin a lawsuit challenging the transgender bathroom policy at Boyertown Area School District, about an hour outside Philadelphia, which allows students to use the bathrooms, lockers, and other private facilities of the opposite sex based solely on their own subjective sense of âgender identity.â Put another way: The school district permits biological boys to enter girlsâ private facilities and vice versa.
One day in 2016, when she was a junior at Boyertown High, Lightcap found herself on the sharp end of the policy. âI was on my way to the girlsâ bathroom,â she said in a phone interview Thursday, âwhen I suddenly saw a male inside washing his hands. I froze. Then I ran out in shock.â How did she know the student was male? âIâve been going to this school since fourth gradeââitâs a tiny districtââI know everybody. Up to this moment, this person was a male.â
Lightcap immediately told a teacher about the incident. Concerned, her teacher urged her to alert administrators. But a principal told Lightcap and her teacher to “deal with it,” meaning the new policy. School officials told the other student-plaintiffs, who include boys and girls, that they need to âtolerateâ changing with the opposite sex and to make it as ânaturalâ as possible, according to a legal brief filed by the Alliance Defending Freedom (ADF), the religious-liberty law firm representing Lightcap and the other students. A spokeswoman for the school district declined to comment.
Boyertown Area School District, however, hadnât bothered to inform the student body or parents about the policy change. Only the students who sought access to opposite-sex bathrooms were in-the-know. Not that a heads-up would have changed Lightcapâs mind.
âGuys donât belong in girlsâ bathrooms,â she told me, âand girls donât belong in guys’ bathrooms. The school itself says it protects the privacy of every person. Students should not have to change in bathrooms where they don’t feel comfortable.â And although Lightcap graduated this week, the issue is still very much relevant to her: âMy sister is still in that school. Sheâs in the seventh grade. So I donât want males in her bathroom.â
The district hasnât specified an age floor for the policy.
The ADF filed the lawsuit in March 2017 in the U.S. District Court for the Eastern District of Pennsylvania. Subsequently, it moved for a preliminary injunction to stop the policy from being implemented while the litigation made its way through the courts. The legal arguments on Lightcapâs side are compelling.
American law and tradition take it for granted that the sexes are entitled to safe, separate, and private facilities. Until relatively recently, progressives embraced the idea. A 1975 op-ed in the Washington Post, for example, argued that âseparate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy. Individual privacy, a right of constitutional dimension, is appropriately harmonized with the equality principle.â
The author of that op-ed: Ruth Bader Ginsburg.
In numerous criminal law and correctional contexts, courts have found a Fourteenth Amendment fundamental right to privacy from the opposite sex viewing Americansâ nude bodies. Equally important, Title IX treats the use of private facilities by members of the opposite sex as sexual harassment, since it exposes people of one sex to the unwanted presence of the other sex. Title IXâs protections arose out of concerns about anatomical differences between the sexes; the notion of a âgender identityâ separate from bodily sex would have confounded the lawâs framers.
Indeed, the whole edifice of Title IX protections would collapse if the sex binaryâobjective, anatomical, tied to human biologyâwere to give way to the fluid and ever-shifting categories of gender identity, which flow from mental states. It would be a strange and bitter irony if a law enacted to protect the female sex in public settings were to be reinterpreted by the courts in such a way as to destroy biological sex as a legally meaningful concept.
Last August, the district court dismissed the ADFâs motion for a preliminary injunction, and an appeals hearing before the Third Circuit didnât go much better. Third Circuit Judges Theodor McKee and Patty Schwartz railed against ADF lawyers for using the terms âbiological sexâ and âopposite sex.â Such language, McKee said, âcomplicates the discussion.â
He went on: âIt is not clear at all. It does notâto my mind, that does not enhance the clarity. If I hear the term âtransgender boyâ and âtransgender girl,â then I can get my head around that.â Since girls who identify as boys are treated the same as boys who identify as girls, the judge argued, there was nothing discriminatory about the district policy. He was begging the question, in other words. The whole debate revolves around whether Title IX sex protections mean anything once biological sex is abolished.
When the lawyer for Lightcap presented expert testimony on the tension between biological sex and gender identity, Judge McKee interrupted him: âWell, youâre in my house, or our house . . . So letâs use the term that to my mind is . . . most respectful to the persons involved here.â In other words, the appeals bench had adopted the transgender movementâs vocabulary and worldview from the outset.
Denial of a preliminary injunction, of course, doesn’t mean the case is dead. The litigation now returns to the district court for adjudication, and the plaintiffs are prepared for the long fight. Lightcap, especially, is unbowed. Having spent half her life bouncing between parents, grandparents, and the foster-care system, she has a powerful sense of mission and destiny. “This was God’s plan for me,” she told me. “If I didn’t follow what He wanted me to do, I don’t know what I would do.”