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Published On: Thu, Apr 21st, 2016

ADF corrects Tennessee AG Herbert Slatery on transgender bathrooms, student privacy laws

Tennessee Attorney General Herbert Slatery released an erroneous opinion Monday which stated that HB 2414, a bill that protects students’ physical privacy in public school restrooms, violates federal law and puts Tennessee public schools’ federal funding at risk. In a newly released document, Alliance Defending Freedom shows that bills like HB 2414 do not violate Title IX, a law that prohibits sex discrimination in schools that receive federal funding but that specifically says separate restrooms based on biological sex are allowed.
Image/Video Screen Shot

Image/Video Screen Shot

“Contrary to the inaccurate guidance coming from the U.S. Department of Education and now the Tennessee attorney general, Title IX specifically states that separate restrooms and changing facilities on the basis of biological sex are permitted,” said ADF Legal Counsel Matt Sharp, whotestified last month before a legislative subcommittee about the bill. “Thus, under current law, states and school districts that enact laws and policies requiring students to use restrooms and locker rooms that correspond to their biological sex do not violate Title IX. The threats about losing funding are simply empty threats.”

Title IX and its regulations state that a school receiving federal funds can “maintain separate living facilities for the different sexes” and “provide separate toilet, locker room, and shower facilities on the basis of sex” without putting its federal funding at risk.
To protect students’ privacy rights and safety, HB 2414 ensures that students either use restrooms and locker rooms that align with their biological sex or use single-stall restrooms. In his opinion, Slatery inaccurately claimed that HB 2414 violates Title IX “because the U.S. Department of Education…interprets Title IX to require that transgender students be given access to restrooms and locker rooms consistent with their ‘gender identity’ instead of their anatomical gender.”
“In truth, Title IX makes no such requirement,” explained ADF Senior Counsel Jeremy Tedesco. “DOE’s interpretation is completely off-base. What the law says is what matters, and the law explicitly allows separate restrooms and locker rooms. The DOE oversees but cannot change Title IX, which only Congress can modify, so the agency has no legal basis for forcing schools to open restrooms to students of both sexes.”
Every federal court to examine the issue has concluded that maintaining separate restrooms and locker rooms on the basis of sex does not violate Title IX. The attorneys general of South Carolina, West Virginia, Mississippi, and Arizona recently reinforced this by correctly applying Title IX in their friend-of-the-court brief filed in the case G.G. v. Gloucester Country School Board.
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