The U.S. Supreme Court has been asked to review a case that asks whether school districts can require that students be exposed to naked members of the opposite sex.
The 3rd U.S. Circuit Court of Appeals agreed with the Boyertown Area School District in Pennsylvania that students should be allowed to use restrooms and shows according to their “gender identity” rather than biological sex.
The Alliance Defending Freedom lawyers is representing Boyertown students and their parents in the case.
“Given students’ constitutionally protected privacy interest in their partially clothed bodies, whether a public school has a compelling interest in authorizing students who believe themselves to be members of the opposite sex to use locker rooms and restrooms reserved exclusively for the opposite sex, and whether such a policy is narrowly tailored” is the question that must be answered, ADF said.
During the 2016-17 school year – without informing parents or students – the Boyertown Area School District opened its high-school locker rooms and restrooms to students of the opposite sex based on the students’ beliefs about their gender, said the legal group.
“Some male students learned of the policy while they were undressing in their locker room and discovered that a female student was changing clothes with them,” ADF said. “Embarrassed and confused, the students sought help from school officials, who told them they should just ‘tolerate it’ and ‘make it as natural as possible.'”
ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch said everyone should be able to agree “that students struggling with their beliefs about gender need compassionate support.”
“But there are sound reasons why schools have always separated male and female teenagers in showers, restrooms, and locker rooms,” he said. “No student’s recognized right to bodily privacy should be made contingent on what other students believe about their own gender.”
Bursch said the 3rd Circuit’s decision “made a mess of bodily privacy and Title IX principles, and the decision deserves review and reversal by the U.S. Supreme Court.”
ADF contends the school violated the students’ fundamental right to bodily privacy under the U.S. Constitution.
“These types of school policies have serious privacy implications,” said ADF Legal Counsel Christiana Holcomb. “Teenagers should not be forced to welcome members of the opposite sex into their showers, restrooms, or locker rooms based on what they believe about their gender. All schools, including Boyertown Area School District, should be providing support for those dealing with gender dysphoria, but they should seek to do so in ways that protect the privacy of all students.
“It is untenable that the Third Circuit made students’ right to bodily privacy contingent on what others believe about their own gender,” the filing states. “Recognizing this reality does not diminish the concern for students who believe they are of the opposite sex. Schools can (and should) teach that every student has inherent dignity and worth and should be treated as such. Schools can (and should) assure students with gender dysphoria that they are valuable and important members of the school community. And school officials can (and should) provide them with resources and support. Despite such alternatives, Boyertown chose to violate the privacy rights of all other students.”
Randall Wenger, chief counsel of the Independence Law Center, said schools “should not expect students to accept that the differences between females and males don’t matter in the very places set apart for privacy from the opposite sex.”
The filing contended disastrous policy decisions followed an order from the Obama administration that public schools make their restrooms and showers open according to gender identity, with the threat to lose federal funding for failing to capitulate.
The Trump administration revoked the guidance but many schools still are pursuing the Obama social agenda.
The school has deprived other students of the use of various facilities “on the basis of sex,” which is precisely what Title IX prohibits, the filing argues.
The lower court’s ruling said a boy who thinks he is a girl, is a girl, and, therefore, there is no offense to others in the facility.
“It is untenable that the Third Circuit made students’ right to bodily privacy contingent on what others believe about their own gender. This court’s immediate intervention is sorely needed,” the brief states.
It was the federal trial-court judge, Edward Smit who ruled that the school could expose students in intimate settings to members of the opposite sex.
