William Wagner
Justice Center asks Supreme Court to protect privacy in school bathrooms and showers
By William Wagner
March 4, 2019

The Great Lakes Justice Center, representing state and national Christian school associations, recently asked the Supreme Court to protect privacy in public school bathrooms and showers.

For over 40 years, Federal law permitted state and local schools to protect children by providing separate bathrooms and showering facilities on the basis of sex. No one ever questioned the clear meaning of the law (Title IX).

ACLU Files Lawsuit to Force Schools to Require Male Access to Female Bathrooms and Showers

The American Civil Liberties Union (ACLU) filed a lawsuit arguing that a student's biological sex should no longer dictate which bathroom or locker room the child uses in school.

Obama Administration Agreed with the ACLU's Position

During the pendency of the ACLU's lawsuit, the U.S. Department of Education, under President Obama's administration, sent a letter to every Title IX recipient in the county. The letter stated:
    A school may no longer require a student to use the bathroom, locker room, or shower of the opposite sex if the student or his/her parent or guardian asserts a "gender identity" different from his/her actual sex.

    The assertion by the student or his/her parent or guardian does not need to be supported by a psychological diagnosis, a medical diagnosis, or any evidence of treatment.

    Students who, as a consequence of this new policy, no longer feel comfortable using the bathroom, locker room, or shower of their own sex for reasons of privacy, modesty, sincerely held religious beliefs, or safety concerns may be relegated to a separate facility.

    Yet, no school can require that a student whose "gender identity" does not match his/her biological sex use a separate facility. Only non-transgendered students will be required to use a separate facility.
Seemingly in reaction to this letter, the public school in the current case changed their longstanding bathroom and locker room privacy policies.

Relying Upon Obama Administration's Letter, School Authorizes Invasion of Privacy without Warning Parents

Here, without warning to parents or students, the school altered its policy to allow biological males to use the girls' room, and to allow biological females to use the boys' room. The Justice Center contends this action invaded the privacy of children. These children felt uncomfortable. Using the bathrooms and changing rooms of their biological sex in the presence of the opposite sex embarrassed them greatly. For example, Mary Smith ran out of the girls' bathroom in fear and confusion after discovering a biological male with her in that intimate space.

School Ignores Concerns of Parents

The school's new policy resulted in an outpouring of complaints and concerns from students and parents alike. The school nonetheless instructed the children and school community to tolerate the change. Ironically, while ostensibly promoting tolerance, the school rejected all of the parent's concerns with its new policy.

The school espoused that female students had no expectation of privacy to use changing rooms or bathrooms free from biological males. Indeed, the school punished Joel Doe for failing to change his clothes in front a biological female before gym class.

The school exhibited no concern with children fasting and reducing their water intake, so as to avoid being in a state of vulnerability in front of the opposite biological sex. School authorities dismissed all of the children's concerns with being nude, partially nude, or going to the bathroom with members of the opposite biological sex. This was so despite the fact that prior to the school's policy change, the school always accommodated for the biological difference in the sexes by offering separate, private bathrooms and locker rooms.

On behalf of state and national Christian school associations, the Justice Center provided strong legal analysis in support of protecting a child's privacy.

Legal Background

In 1979 the United States Congress enacted and President Carter signed the Department of Education Organization Act, establishing the Department of Education. 20 U.S.C. § 3401 et seq. Seven years earlier in 1972, Congress passed and President Nixon signed Title IX of the 1972 Education Amendments into law. Title IX sought to rectify the inequity women faced in the workforce and to address the gender earnings gap by enabling the progress of women and girls in education. As legislative history reveals, the law focused on combating the economic disadvantages women faced in the workplace by addressing differential treatment on the basis of sex in education. See, e.g., 118 Cong. Rec. 5803-07 (1972)
    Title IX provides:

    No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .20 U.S.C. § 1681(a)
Notably, <118 Cong. Rec. 5803-07 (1972)>Title IX recognizes the biological and physiological differences between men and women. Title IX also importantly provides that,
    Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes. Id. § 1686.
Likewise, Title IX's implementing regulation, C.F.R. § 106.33, expressly allows for schools to designate separate facilities based on sex:
    A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.
The terms or concept of "gender identity," "transgenderism," and "transsexuality" appear nowhere in Title IX, its enacting regulations, or its legislative history. In sum, Title IX: 1) requires that schools not discriminate on the basis of sex in order to receive federal funding; 2) clearly states that separate "toilet, locker room, and shower facilities" on the basis sex are permissible; and 3) includes no provisions, legal or otherwise, pertaining to the special treatment of "gender identity," "transgenderism," or "transsexuality." As the Supreme Court decides whether to hear this case, therefore, the rule of law is at stake.

Those debating this political issue too often resort to emotional appeals. Governance loses its legitimacy though, when those in power substitute their passion for the law. Without fear or favor, the Supreme Court should consider this case and say what the law is.

© William Wagner


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