Published On: Wed, Jan 18th, 2017

ADF calls on SCOTUS to protect students’ privacy in Virginia transgender bathroom case

Alliance Defending Freedom filed a friend-of-the-court brief Tuesday with the U.S. Supreme Court in support of the student privacy policy of a Virginia school district. The Gloucester County School District policy protects students’ privacy and safety by maintaining separate restrooms for members of each sex while providing individual, private facilities for students uncomfortable with using a facility that corresponds to their sex.

A federal district court had ruled in favor of the school district in G.G. v. Gloucester County School Board, finding that its policy “seeks to protect an interest in bodily privacy that the Fourth Circuit has recognized as a constitutional right,” but a three-judge 4th Circuit panel nonetheless rejected that ruling, with one judge strongly dissenting, in April of last year. The U.S. Supreme Court agreed in October to take up the case. The ADF brief joins numerous others filed with the high court in favor of the school district’s policy.

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“Schools have a duty to respect and protect the privacy and safety of all students. Other courts—including the 4th Circuit itself—have previously upheld that standard, and we trust the Supreme Court will, too,” said ADF Senior Counsel Gary McCaleb. “Girls should never be forced share intimate facilities with boys. This obviously violates their right to privacy and harms their dignity. The school board enacted a policy consistent with that understanding and with decades of court decisions establishing that no law grants opposite-sex persons access to single-sex facilities, where the interest in privacy is obviously strongest and bodily exposure is so common. Our brief encourages the Supreme Court to reverse the 4th Circuit’s ruling because it is out of step with the law and previous federal court precedent.”

The American Civil Liberties Union of Virginia sued the school district over the policy in June 2015 and asserted that the school board violated Title IX, a federal law, and the 14th Amendment’s Equal Protection Clause when the district declined to allow a female student to use the boys’ restrooms. The U.S. departments of Education and Justice have also furthered this erroneous argument, and ADF has filed lawsuits in Illinois, Ohio, and Minnesota against DOE and DOJ over their misinterpretation of the law, their lack of authority to change the law’s meaning, and the bullying tactics they are using to enforce their political will.

“Title IX does just the opposite of what the ACLU claims,” explained ADF Senior Counsel David Cortman. “Title IX’s regulations specifically authorize schools to have separate restrooms and locker rooms for boys and girls. The policy accommodates students who aren’t comfortable using facilities designated for their biological sex, but it does so without neglecting the established right of children to bodily privacy and safety.”

As the ADF friend-of-the-court briefs explains, “those resisting the [DOE] federal mandate are defending a bodily privacy right that impacts all students, and protecting bodily privacy is squarely within the purpose of Title IX and 34 C.F.R. §106.33 [the federal regulations accompanying Title IX]. But the interest claimed by transgender students is solely a demand that the government affirm their subjectively perceived sex, an interest which is not only divorced from the plain text of Title IX and its regulations, but…eliminates the ability of schools to protect bodily privacy under the authority of 34 C.F.R. §106.33. Because the self-perception affirmation interest advanced by transgender students and their advocates is so far outside of the plain text purpose of Title IX, the Petitioner [Gloucester County School Board] is on sound ground arguing that the federal mandate violates Title IX, the Administrative Procedures Act, and the Spending Clause, and merits no judicial deference.”

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