The Trump administration already has reversed the Obama-era order that public schools open their girls’ showers to boys, and vice versa, but that hasn’t yet changed the practice of all schools.
A lawsuit has been filed against the Boyertown Area School District in Pennsylvania for deliberately violating “a child’s fundamental right to bodily privacy contrary to constitutional and statutory principles.”
The case cites the 14th Amendment, Title IX, invasion of seclusion and the Pennsylvania Public School Code of 1949, which requires separate facilities on the basis of sex.
The case was brought by lawyers with the Alliance Defending Freedom and the Independence Law Center against the district, its superintendent, Richard Faidley, principal Brett Cooper and assistant principal E. Wayne Foley on behalf of a student identified only as “Joel Doe,” by and through his guardians.
ADF and ILC explained the high school boy “was exposed involuntarily to an undressed female student while he was changing in his school’s locker room.”
“Without any notice to students or parents, the school district secretly opened its schools’ sex-specific restrooms and locker rooms to students of the opposite sex. When the student, identified in the lawsuit as ‘Joel Doe,’ was standing in his underwear about to put on his gym clothes, he suddenly noticed that a female student, also in a state of undress, was in the locker room,” the legal groups said.
“The male student brought a complaint to school officials, who informed him that they now allow students who subjectively identify themselves as the opposite sex to choose whichever locker room they wish to use. He asked officials to protect his privacy, but they instead told him twice that he must ‘tolerate’ it and make changing with students of the opposite sex as ‘natural’ as he can.”
ILC Chief Counsel Randall Wenger said: “No school should rob any student of his legally protected personal privacy. We trust that our children won’t be forced into emotionally vulnerable situations like this when they are in the care of our schools because it’s a school’s duty to protect and respect the bodily privacy and dignity of all students. In this case, school officials are clearly ignoring that duty.”
The complaint explains the practice “has had a severe and negative impact on plaintiff.”
“Plaintiff has experienced embarrassment and humiliation, both in terms of being viewed and viewing a student of the opposite sex in a state of undress and because of the stigmatization and criticism he received from other students and adults, fueled by the administration’s policy and actions,” the complaint says.
“He also fears the future embarrassment of meeting students of the opposite sex in the bathroom when simply relieving himself. He now avoids using the restroom during the school day because of the ongoing risk of having his privacy violated,” it states.
ADF Legal Counsel Kellie Fiedorek said the nation’s “laws and customs have long recognized that we shouldn’t have to undress in front of persons of the opposite sex.”
“But now some schools are forcing our children into giving up their privacy rights even though, in this case, Pennsylvania law requires schools to have separate facilities on the basis of sex,” Fiedorek said.
“Respect means protecting the personal privacy of each student, not taking it away,” said Jeremy Samek, senior counsel for ILC. “It’s regrettable that a student would have to go to court to ensure that his well-established privacy rights aren’t tossed aside.”
It was Oct. 31, 2016, when Joel Doe was changing into clothing for a required physical education class when he noticed a girl also changing in the room. She was wearing “nothing but shorts and a bra.”
He dressed quickly, left and complained, along with other classmates, to Foley, whose response included the statement that biological gender did not matter.
“The district intentionally and purposefully caused Joel Doe’s privacy to be violated,” the claim states.
The school later issued a statement to WND that it had not been “officially” served with the case and it was reviewing the matter.
The complaint asserts the district violated the 14th Amendment’s privacy protections and a wide range of other requirements.
“Minors have a fundamental right to be free for state compelled risk of exposure of their bodies, or their intimate activities,” it says. “Doe was subjected to harassment because the practice allows biological females to use the boys’ locker rooms and restrooms, which creates a harassing hostile environment specifically on the basis of the sex of the persons involved.
“Differences in anatomy … do not disappear when biological females self-identify as males, and vice versa.”
The case seeks a permanent injunction against the district’s forced exposure practices.
The fight has developed over years because of demands from transgender activists that the general population submit to their beliefs.
Obama had incorporated it widely by demanding that schools allow students to pick their gender.
Then the Trump administration sent a letter to schools across the nation withdrawing Obama’s requirement that boys who identify as girls be allowed to use girls’ showers, restrooms and other gender-specific facilities.
In a “Dear Colleague” letter, the Trump administration overturned the overreach from the Obama administration based on the premise that in the 1970s, when Title IX was adopted, Congress had in mind that girls’ facilities should be open to boys who say they are girls and vice versa.
“These [Obama] guidance documents take the position that the prohibitions on discrimination ‘on the basis of sex’ in Title IX … require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process,” the letter said.
So “the Department of Justice and the Department of Education are withdrawing” the Obama mandates.
The letter noted that “significant litigation” had arisen over the move and that “the U.S. Court of Appeals for the Fourth Circuit concluded that the term ‘sex’ in the regulations is ambiguous and deferred to what the court characterized as the ‘novel’ interpretation advanced in the guidance.”
But, it said, “by contrast, a federal district court in Texas held that the term ‘sex’ unambiguously refers to biological sex and that, in any event, the guidance was ‘legislative and substantive’ and thus formal rulemaking should have occurred prior to the adoption.”
Further, the federal departments believe “there must be due regard for the primary role of the states and local school districts in establishing educational policy.”
White House spokesman Sean Spicer said at the time the Trump administration believed it is obligated to follow U.S. law on the issue, rejecting Obama’s interpretation of “sex” in the 1972 Title IX law as whatever gender a person chooses.
“There are problems in both the legal and process way in which (Obama’s) guidance was issued,” Spicer explained in response to a question about the issue. “And so it is incumbent on us to actually follow the law and to recognize that Title IX … was [enacted] in 1972.
It was U.S. District Judge Reed O’Connor in Texas who blocked the Obama directive nationwide and denied requests from two federal executive branch departments to lift the ban.
He also noted that “sex,” as used in 1972, referred to the person’s physical gender at birth.