50 Virginia students, parents, others to 4th Circuit: Uphold policy to protect privacy in restrooms

RICHMOND, Va. – Alliance Defending Freedom attorneys filed a friend-of-the-court brief Wednesday with the full U.S. Court of Appeals for the 4th Circuit on behalf of 50 concerned parents, students, grandparents, and community members who support the Gloucester County School Board’s restroom policy. That policy protects students’ privacy and safety by reserving restrooms and locker rooms for members of the same biological sex, while providing an alternative private facility for students uncomfortable using a facility that corresponds with 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 4th Circuit panel nonetheless rejected that ruling 2-1 in April. The ADF brief, which the Family Foundation of Virginia also joined, asks the full 15-judge court to reverse that decision.

“Schools have a duty to protect the privacy and safety of all students. That’s a principle that numerous other courts—including the 4th Circuit itself—have previously upheld,” said ADF Senior Counsel Jeremy Tedesco. “It’s common sense that boys shouldn’t be in girls’ locker rooms, but furthermore, the school district’s policy is on solid legal ground because federal law specifically authorizes schools to have single-sex restrooms and locker rooms, as the judge who dissented from the panel’s decision rightly noted. We have asked the full 4th Circuit to reverse the panel’s ruling, which is out of step with the law and all previous federal court precedent.”

The ACLU of Virginia sued the school district over the policy in June of last year 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 recently filed lawsuits in North Carolina and Illinois 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, the federal law that this lawsuit cites in its attempt to overturn the school district’s policy, does just the opposite of what the ACLU is arguing,” explained ADF Legal Counsel Matt Sharp. “Title IX specifically authorizes 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 without neglecting the established right of children to bodily privacy and safety.”

“Both the plain language of Title IX and its legislative history clearly indicate Congress’ intent to allow schools to maintain separate restrooms and locker rooms for boys and girls based on biological sex…,” the ADF brief states. “Nonetheless, DOE is holding ‘a gun to the head’ of Gloucester and other school districts across the country by threatening to revoke all of their federal education funding if the districts do not comply with this new definition of ‘sex….’ Physiological differences require distinctive and separate spaces, which is why the Title IX regulations expressly allow schools to ‘provide separate toilet, locker room, and shower facilities on the basis of sex….’ In situations where privacy or common sense dictates that biological boys and girls should be separated, Title IX allows schools to do just that. Numerous courts have recognized this fact.”

• Pronunciation guide: Tedesco (Tuh-DESS’-koh)

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.

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