Schools could be held liable for violating the rights of students and parents if they follow Barack Obama’s executive order to open restrooms and showers according to “gender identity,” warns a legal advocacy group.
President Trump promptly reversed Obama’s order when he took office, but some districts still are implementing it while others remain confused.
They shouldn’t be, according to a new letter dispatched by the Alliance Defending Freedom to all districts.
The letter explains there is no federal law that requires “school districts to grant students access to facilities dedicated to the opposite sex.”
Further, granting students “access to opposite-sex changing areas could subject schools to legal liability for violating students’ and/or parents’ rights.”
The organization earlier sent a similar letter to schools in Minnesota after the state’s advisory council for the Minnesota Department of Education adopted a “Toolkit for Ensuring Safe and Supportive Schools for Transgender and Gender Nonconforming Students,” which mandates the “segregation” of students who are uncomfortable with sharing private rooms with the opposite biological sex.
“Privacy objections raised by a student in interacting with a transgender or gender nonconforming student may be addressed by segregating the student raising the objection provided the action of the school officials does not result in stigmatizing the transgender or gender nonconforming student,” Minnesota states in the document.
The “toolkit” asks schools to provide for both “shared” and “gender neutral” restrooms, locker rooms and hotel rooms for out-of-town travel to accommodate their transgender students.
It also advises public-school officials to cater to gender-ambiguous students by referring to students as “scholars” rather than girls or boys, and the prom king and queen as “prom ambassadors.”
ADF at that time told those schools: “Neither the Toolkit, Title IX, nor any federal or state law, requires schools to allow students to use opposite sex restrooms, locker rooms, showers and overnight accommodations. Students have the right to bodily privacy. Parents have the right to control their children’s education and upbringing, including their knowledge of the differences between sexes.”
ADF explained the “drafters of the Toolkit rely on the federal Department of Education’s May 16, 2016, Dear Colleague Letter as guidance and legal support for their claims. That guidance has been withdrawn and the federal government no longer relies on the position expressed. Thus it is clear that Title IX prohibits discrimination based only on the binary characteristic of sex and does not expand to ‘gender identity,’ ‘gender expression’ or a ‘gender spectrum.'”
ADF said its new letter to public school districts nationwide offers a recommended policy to handle demands from students or their parents that the student be allowed to use opposite-sex facilities on a case-by-case basis.
But they should not rely on the Obama administration guidance, as that could get them in trouble.
“Schools have a duty to protect the privacy and dignity of all students,” said ADF Senior Counsel Matt Sharp. “No child should be asked to share an intimate setting – like a locker room or shower – 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 dignity.”
“Personal privacy is something we all hold dear, and respect means ensuring that no school forces a young boy or girl into an emotionally vulnerable situation,” Fiedorek said.
The organization has posted online a video with the testimony of students whose privacy was violated:
“It is well-settled law that public school districts enjoy broad authority and discretion in operating their schools,” the ADF letter states. “It should go without saying that this discretion includes regulating the use of school restrooms and similar facilities. In this context, protecting every student’s privacy and safety is at a premium. Allowing students to access restroom and locker room facilities dedicated to the opposite sex accomplishes neither goal, and has a high probability of violating the constitutional right to bodily privacy enjoyed by all students. The most important point is this: schools have broad discretion to handle these delicate matters, and the federal government supports the authority of school districts to craft local policies to address student privacy.”
ADF says much of the confusion over privacy facilities was driven by a “short-lived effort by federal officials to redefine ‘sex’ to mean ‘gender identity’ under Title IX via a ‘Dear Colleague Letter’ to school officials in 2016.”
“That misguided effort ended … when the U.S. Departments of Education and Justice issued a Dear Colleague Letter that rescinded the 2016 Letter which had wrongly told schools to allow students to use showers and restrooms on the basis of their professed gender identity or risk losing federal funding. The Departments rejected any further reliance on that rescinded guidance. … We advise school districts to continue to handle these matters as they arise utilizing the advice given in this letter or to adopt the model policy proposed by ADF or a substantially similar policy.”
ADF has explained that under Title IX, schools can “maintain separate living facilities for the different sexes,” and Title IX’s implementing regulations state that schools may provide separate toilet, locker room and shower facilities on the basis of sex.
Biological males who call themselves females do not have the right to access female facilities according to Title IX, ADF contends.
“Doing so raises legitimate privacy concerns for females. There is no standing federal case law allowing an interpretation of Title IX to include gender identity as a protected class,” the group said.
ADF currently is fighting a court battle over the transgender bathroom controversy in Pennsylvania’s Boyertown Area School district after a boy turned around in a male locker room and saw a girl who identifies as a boy changing clothes.
School officials “secretly opened” their sex-specific restrooms and locker rooms to students of the opposite sex without any notice to students or their parents, the lawsuit charges.
The male student who objected to undressing in front of a transgender students was directed by the school to make undressing with students of the opposite sex “natural” or shower somewhere else.
According to a Rasmussen survey released in May, 51 percent of American adults oppose allowing transgender students to use the bathrooms of the opposite biological sex, 33 percent support this decision and 16 percent are undecided.