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Supreme Court of the United States

The Differences Between Boys and Girls Haven’t Changed—Nor Have Their Privacy Needs

By Marissa Mayer posted on:
May 31, 2018

Last week, high school senior Alexis Lightcap came forward to take a public stand against her school district, which refuses to protect her privacy and the privacy of the other students in its care.

Boyertown Area School District in Pennsylvania instituted a policy that authorizes students who self-identify as the opposite sex to access the locker rooms, shower areas, and restrooms of their choice in its schools. The district changed its policy without ever informing students or parents. This led to multiple unexpected and uncomfortable encounters by students who were shocked to find themselves sharing a bathroom or changing in the locker room with a member of the opposite sex.

I feel for Alexis and her classmates. I remember how uncomfortable locker rooms could be as a teenager. As a student-athlete for many years, I spent a lot of time in them. Not to mention, I come from a very tall family. By the time I was in the sixth grade, I had the body of an adult woman. Let’s just say that fact alone created plenty for a 12-year-old girl to feel self-conscious about.

I also grew up in Arizona where temperatures regularly surpass 90-100 degrees 6 months out of the year. So when the heat of the day led to searches for a cooler hangout at lunchtime or after school, we girls would regularly congregate in the restrooms—it was our space.

And according to Alexis, things haven’t changed much since I was a kid.

As she describes it, “The girls’ bathroom had always been the girls’ getaway place—a place for privacy, mostly, but also a little refuge—a place to get away from boys, maybe talk about boys, but not meet boys.”

What has changed since I was a kid is that now some school districts are no longer protecting these private spaces for the young men and women in their care. The result, as Alexis is facing at Boyertown, is that any man can claim a female identity and enter private spaces reserved for girls—and vice versa.

But that’s not all. Anyone who is uncomfortable with such a policy—such as Alexis’ male classmate who uncomfortably found himself changing in the boy’s locker room with a girl—is told by a school official to grin and bear it, to make it feel “natural.”

But there’s nothing natural about forcing teenage boys to share their school locker rooms with girls. Because the differences between boys and girls haven’t changed.

Unfortunately, some of those who are tasked with protecting all students are choosing to ignore that simple fact.

On May 24, the U.S. Court of Appeals for the 3rd Circuit ruled against student privacy in Doe v. Boyertown Area School District declaring that the school district can enact a policy that forces students to sacrifice their own personal privacy in these sex-specific private spaces.

This disappointing news came on the heels of an unfortunate ruling by a U.S. district court in another student privacy case, Gloucester v. G.G. There, the situation was reversed: the school district maintained a policy that protected the privacy of all its students by keeping biological males in male facilities and biological females in female facilities. A student who identified as a member of the opposite sex challenged the school district’s policy. The school asked the judge to dismiss the case, but the judge’s ruling refused to do so.

If you remember, the Gloucester case was appealed to the U.S. Supreme Court in 2017, but was sent back to the Fourth Circuit after the Trump Administration announced it was rescinding Obama-era guidance that demanded school districts open their locker rooms, shower facilities, and other private spaces to members of the opposite sex. (At the time 8,914 concerned parents, students, grandparents, and community members took a stand to protect privacy for our children and grandchildren by signing our friend-of-the-court brief filed with the Supreme Court.)

The district judge in the Gloucester case explained that the school district might violate Title IX by maintaining sex-specific locker rooms and restrooms. The judge referred to the student's argument as “a Title IX claim of sex discrimination under a gender stereotyping theory.”

By lumping together sex and gender identity, the Gloucester judge makes a fundamental mistake. Sex and gender identity are two very different things. Gender identity is based on a person’s feelings, while sex is determined by biology.

What LGBT activists are attempting to do is assert that the terms “gender identity” and “sex” can be used interchangeably. They want any laws dealing with sex discrimination, such as Title IX, to include gender identity by default.

But as ADF Senior Counsel Jim Campbell wrote for The Daily Signal:

Nothing in Title IX’s congressional history or its regulations suggests that Congress had gender identity in mind when it used the word ‘sex.’ Nor is there any support in Title IX for the novel idea that federal law requires boys who identify as girls to share sleeping facilities, locker rooms, and restrooms with girls. On the contrary, for over four decades Title IX and its regulations have explicitly said that schools may implement sex-specific access policies for these sorts of private facilities.

Students like Alexis are also well aware that biology is the reason that sex-specific private facilities were established in the first place—and it’s for that reason that student privacy matters.

“I don’t have a problem sharing a bathroom with someone who identifies as transgender—provided they are the same sex I am,” Alexis told The Philadelphia Inquirer. "I do have trouble with a policy that says anyone who’s in an opposite-sex mood today can stroll in and observe me in my intimate moments—and with school officials who value the feelings of a few students more than the dignity and privacy of all those in their care.”

Alexis’ school district has failed her and the countless other students in their care. It is possible to treat every student with dignity and respect. But that is not done by ignoring the real differences between men and women. These differences mean that privacy must be protected where it really counts—and that certainly includes high school locker rooms and restrooms.

Marissa Mayer

Marissa Mayer

Senior Copywriter & Editor

Marissa Mayer is an Arizona native who fell in love with the written word at a young age.

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