Headlines such as “State OKs transgender policy,” “Court backs transgender teen” and “Pentagon cozies up to transgender troops” are becoming more common as the next battle over rights based on “sexual orientation” builds.
And the fight nowhere has been more intense than in schools, where boys who believe they are girls are seeking the right to use facilities designated for the opposite sex.
But now schools are being warned that accommodating the demands of transgender students could make them vulnerable to lawsuits.
“Granting students access to opposite-sex changing areas could subject schools to tort liability for violating students’ and parents’ rights,” warns the Alliance Defending Freedom, a nonprofit legal group that specializes in First Amendment rights.
ADF has contacted school districts across the nation by email and letter, offering a recommended policy to protect the rights of all students.
“Students have the fundamental right to bodily privacy, and that right is clearly violated when students – much less kindergartners as young as 5 years old – are forced into situations where members of the opposite sex may view their partially or fully unclothed bodies.”
The letter explains federal courts already have determined shielding “one’s unclothed figure from the view of strangers, particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.”
The policy ADF recommends is only a few paragraphs.
“Notwithstanding any other board policy, student restrooms, locker rooms and showers that are designated for one biological sex shall only be used by members of that biological sex,” it states.
It proposes the same for changing rooms used for plays or other school events.
“Students that exclusively and consistently assert at school that their gender is different from their biological sex shall be provided with the best available accommodation that meets their needs, but in no event shall that be access to the school restroom, locker room, or shower of the opposite biological sex,” the policy says.
The issue already has been in court, and California has adopted a law requiring schools to treat boys who say they are girls as girls.
Several other jurisdictions also are moving in that direction.
ADF warns it could be a disastrous decision.
“Forcing students into vulnerable interactions with opposite-sex students in secluded restrooms and locker rooms would violate [a] basic right,” the letter to schools says.
It cites several court precedents.
“Courts have even found that prisoners have the right to use restrooms and changing areas without regular exposure to viewers of the opposite sex,” the letter says. ” … Students possess far more robust legal protections and are obviously entitled to greater privacy rights than prisoners.”
The letter explains parents also have the “fundamental right to control their children’s education and upbringing, including the extent of their children’s knowledge of the difference between the sexes.”
For example: “Use of the urinal requires a certain level of exposure to which female students should not be subject. Such revelations give rise to questions that most parents would deem inappropriate for younger students to ponder. Information concerning anatomical differences should be disclosed at home when parents deem appropriate, not ad-hoc in a school restroom.”
ADF said its email and letters were dispatched Thursday to school districts nationwide. The letter went to Gloucester County Public Schools in Virginia, “because it plans to vote Dec. 9 on whether to adopt a policy that would open up restrooms and changing areas to members of the opposite sex.”
It explains that “neither Title IX, nor any other federal law, requires schools to allow students to use opposite-sex restrooms, showers, and changing rooms,” which has been affirmed in federal court based on safety issues.
“We also write to inform you that schools that allow students to use the restrooms, locker rooms, and shower rooms of their choice open themselves to legal liability for violating the fundamental rights of students and parents.”
The recommended policy, the email to all schools explains, “will help your district successfully navigate the difficult issues posed by these competing interests.”
“Schools have a duty to protect the privacy, safety, and dignity of all students,” said ADF Senior Legal Counsel Jeremy Tedesco. “No child should be forced into an intimate setting – like a bathroom or a locker room – with a child of the opposite sex. Our model policy provides a solution that prevents children from being exposed to threats to their privacy and safety and prevents schools from being exposed to liability.”
Added ADF Senior Counsel Kevin Theriot: “Our recommended policy demonstrates that schools can accommodate the desires of a small number of students without compromising the rights of other children and their parents. Any privacy and safety policy should respect all children because every child matters. No policy should be tailored to a few students at the expense of all the others.”