A legal team defending the privacy rights of students at a Pennsylvania school that opened restrooms and showers to members of the opposite sex has schooled the 3rd U.S. Circuit Court of Appeals on the facts of life.

“Sex is not the same as gender identity,” explains the filing from the Alliance Defending Freedom on behalf of students in the Boyertown Area School District in Pennsylvania.

The dispute erupted when the school secretly told some students they could use whatever restroom and shower they chose.

A district judge and a panel of the 3rd Circuit both affirmed the school’s policy, but ADF is appealing for a review by the full 3rd Circuit bench.

The “panel is incorrect that the new policy serves a compelling governmental interest in preventing discrimination because sex-separated privacy facilities are not discrimination,” the brief says.

And, the lawyers wrote, there is “no compelling interest in affirming a student’s subjective perception of their gender.”

Sex, the lawyers told the judges, “in grounded on the bodily differences between men and women.”

“Intermingling the sexes in high school locker rooms and restrooms permits a preliminary injunction,” as the U.S. Supreme Court decided in a similar, case, they argued.

“Conflating” sex and gender identity results in rights violations, since it is “the presence of the opposite sex in private facilities – restrooms, locker rooms and showers – that constitutes sexual harassment,” they said.

The Supreme Court has found that “sex” is “based on biological differences.”

“Sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth,” the filing explained.

Even the U.S. Supreme Court, when it ordered the Virginia Military Academy opened to women, “pointedly observed the need to alter facilities ‘to afford members of each sex privacy from the other sex,'” the filing said.

It was during the 2016-17 school year – without informing parents or students – that the Boyertown Area School District secretly opened its high school locker rooms, showers and restrooms to students of the opposite sex, which violated many students’ privacy rights.

The outcome was predictable: Students involuntarily encountered students of the opposite sex in various states of undress in school restrooms and locker rooms.

“The U.S. Supreme Court has already spoken: The real differences between men and women mean that privacy must be protected where it really counts, and that certainly includes high school locker rooms and restrooms,” said ADF Legal Counsel Christiana Holcomb. “The panel’s decision is out of step with longstanding legal protection for privacy. That’s why we are asking the full 3rd Circuit to weigh in on the valid concerns of these young students.”

President Obama ordered public schools that wanted to continue to receive federal funding to open their facilities according to “gender identity.”

President Trump reversed the order upon taking office, but some school did not update their policies.

Jeremy Samek, who has been working on the case with the counsel for the Independence Law Center, said the issue isn’t hard to understand.

“The district’s new policy permits a student to unilaterally eliminate the privacy rights of other students based simply on that student’s beliefs about gender. A person’s privacy rights are theirs and theirs alone. Beliefs about gender shouldn’t be a license to violate privacy inside boys’ or girls’ locker rooms and restrooms. That defeats the very purpose of sex-separated facilities.”

ADF has created a video in which Holcolmb explains the problem:

It was the original trial court judge, U.S. District Judge Edward Smith, who ruled that the school could expose students in intimate settings to those of the opposite sex.

But WND reported one year ago when the district itself suddenly became concerned about “student privacy.”

That was when the board of the Boyertown Area School District in Pennsylvania  “unanimously approved a proposal by an area architectural firm to study how to possibly enhance student privacy in the high school’s locker and restrooms.”

The district statement said the study will focus on the high school but could “result in the establishment of a district-wide prototype for existing and future buildings.”


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