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Supreme Court of the United States

Re-Teaching Schools the Basics of Restroom Privacy

By Alan Sears posted on:
October 17, 2017

It’s a kind of understanding – a trust – between employees and those who hire them … customers and those who serve them … church-goers and those who lead them … people who enjoy public events and use public facilities and those who sponsor and maintain them.

And especially – especially – between children and the public schools they must go to.

That all these organizations provide restrooms is a matter of law. That they keep them clean and functional and easily accessible is a matter of health codes and courtesy. That they clearly designate separate facilities for men and women, boys and girls, and do their best to secure and ensure that distinction, is a trust. We go into restrooms seeking privacy and accepting – however reluctantly – a certain vulnerability. And that vulnerability is multiplied for children.

Schools, of course, have their own vulnerabilities in an increasingly litigious and hyper-sexualized culture. Board members and administrators, whatever their personal sensibilities, face mounting social and legal pressure from those determined to draw youngsters into the so-called Sexual Revolution … social activists with little concern for either the invasions of bodily privacy or long-term psychological trauma children may face on those grown-up battlegrounds.

Which is how boards of education like those in Missouri’s Hillsboro R-3 School District and Ohio’s Troy City School District wind up taking actions that defy even the most common sense.

In recent weeks, both of these districts have announced similar decisions that will allow students in their schools to use locker rooms and restrooms of the opposite sex. The dangers of these policies – not to mention the potential legal fallout – might seem obvious,but Alliance Defending Freedom attorneys have clarified them anyway, in a letter sent to both district boards asking them to reverse their decisions. The letter also suggests a policy that will enable the administrators to accommodate students with unique privacy needs, including students who identify as transgender, while also protecting other students’ bodily privacy rights without opening every restroom door to every student.

One of the things our letter explains is the fact – often lost in the current media maelstrom over sexual demands – that no federal law requires public schools to allow boys into girls’ restrooms or girls into boys’ restrooms. Indeed, as the letter notes, these districts could actually be opening themselves up to legal liability for violating their students’ right to bodily privacy.

“Schools have a duty to protect the privacy, safety, and dignity of all students,” says Bryan Kemper, whose children attend school in the Troy City district. “The long-standing tradition of having distinct facilities for boys and girls at school is in the best interest of students. Advocacy organizations trying to pressure schools to do otherwise are disregarding common sense and jeopardizing the physical and emotional well-being of the most vulnerable members of society.”

“Allowing students to use opposite-sex restrooms and locker rooms would seriously endanger students’ privacy and safety, undermine parental authority, violate religious students’ free exercise rights, and severely impair an environment conducive to learning,” the ADF letter explains.

“The policy ADF has suggested allows school districts to accommodate students with unique privacy needs – including students who identify as transgender – while also protecting other students’ privacy and free exercise rights, and parents’ right to educate their children,” says ADF Senior Legal Counsel Jeremy Tedesco.

The letter also cites previous court rulings showing support for public schools that limit restrooms to members of the same sex for privacy and safety reasons. (And do so without violating federal laws concerning sex discrimination in public school programs and activities).

But while such assurances can be encouraging, what most school districts fear most are the lawsuits that could suck them into the thick of current media assaults on anyone who hesitates to place even the most basic limits on sexual license for people of any age. That’s why the ADF letter also offers administrators in both of these school districts free legal assistance if anyone files a lawsuit against the policy ADF attorneys are recommending.

“Schools can accommodate the desires of a small number of students without compromising the rights of other children and their parents,” says 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 without exposing schools to liability and without exposing children to threats to their privacy and safety.”

Pressure is growing for schools all over the country to take actions similar to those taken by these districts in Ohio and Missouri. Please be in prayer for our ADF staff and allied attorneys, as they work to help administrators nationwide understand their legal options – and remember the trust placed in them by the children and communities they serve.

Alan Sears

Alan Sears


Alan Sears served as founder of Alliance Defending Freedom, building on his experience as longtime leader of the organization to strengthen alliances, forge new relationships, and develop ADF resources.

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