On Tuesday, South Dakota could be the first state to put into law protections for the privacy of all students. The bill requires that students use the restrooms and shower facilities in accordance with their biological gender, while providing a separate facility for any students questioning their gender.
No federal law requires public schools to allow boys into girls’ restrooms or girls into boys’ restrooms. In fact, schools and school districts could be exposing themselves to legal liability for violating students’ privacy rights.
“Schools have a duty to protect the privacy, safety, and dignity of all students,” said ADF Senior Legal Counsel Jeremy Tedesco. “No child should be forced into an intimate setting – like a bathroom or a locker room – with a child of the opposite sex. Our model policy provides a solution that prevents children from being exposed to threats to their privacy and safety and prevents schools from being exposed to liability.”
Although media coverage of the legislation often repeats myths about these policies, let’s set the facts straight:
MYTH NO. 1: Title IX, a federal statute that prohibits sex discrimination, requires schools to allow transgender students to use the restrooms and locker rooms of the opposite sex.
FACT: Title IX does not require schools to eliminate distinct facilities for boys and girls. It recognizes that there are privacy and safety concerns justifying the distinctions. Title IX allows schools to “provide separate toilet, locker room, and shower facilities on the basis of sex” without committing sex discrimination.
MYTH NO. 2: The U.S. Department of Education determined that Title IX requires schools to allow students struggling with sexual identity to use the restrooms and changing areas of their choice.
FACT: The Department of Ed’s determination was set out in a nonbinding letter. The letter does not change binding Title IX regulations authorizing schools to create “separate toilet, locker room, and shower facilities on the basis of sex.”
MYTH NO. 3: Courts have ruled against schools that refused to allow a transgender student to use the restrooms of the opposite sex.
FACT: In 2015, federal courts in Pennsylvania and Virginia rejected transgender students’ claims that Title IX required their schools to allow them to use opposite-sex restrooms. The Pennsylvania court ruled that “the University’s policy of requiring students to use sex-segregated bathroom and locker room facilities based on students’ natal or birth sex, rather than their gender identity, does not violate Title IX.”
MYTH NO. 4: Schools will lose federal funding if their policies are inconsistent with the Department of Educ.’s interpretation of Title IX.
FACT: No school has ever lost funding in the 40 years since Title IX became law. Before a school can be stripped of its federal funding, it is entitled to have a federal judge hear its case. And, as shown in Myth No. 3, federal courts are ruling for schools that maintain separate facilities based on sex. Even if a school fights and loses, Title IX gives the school 30 days to comply with the decision and, if it does, it won’t lose funding.
MYTH NO. 5: It does not violate student privacy to allow transgender students to use the restrooms of the gender with which they identify.
FACT: Courts across the country recognize that there is a constitutional right to bodily privacy—to not be viewed unclothed by those of the opposite sex. It has been upheld for children at school, employees at work, and even convicted felons in prison. It doesn’t matter whether a male in the girls’ bathroom identifies as a male or female; if he is biologically a male, his presence immediately violates the bodily privacy rights of every girl forced to share facilities with him.
MYTH NO. 6: Denying a transgender student access to the restroom consistent with his or her gender identity harms the student.
FACT:Forcing students to use the restroom with members of the opposite sex harms all students by violating their right to privacy and making them participate in situations that most adults would object to if they were imposed upon them. Accommodating students struggling with gender confusion by providing them a single-stall restroom, changing room, or a similar alternative, gives them a private location and avoids violating other students’ rights.
“Our recommended policy demonstrates that schools can accommodate the desires of a small number of students without compromising the rights of other children and their parents,” added ADF Senior Counsel Kevin Theriot. “Any privacy and safety policy should respect all children because every child matters. No policy should be tailored to a few students at the expense of all the others.”
We have a variety of resources, from model legislation to legal memos, explaining why it is best for certain facilities to remain separated on the basis of birth sex while providing private accommodations for transgender students. Please contact us to learn about these resources.
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