– Alliance Defending Freedom e-mailed an updated letter
Thursday to public school districts nationwide to provide them with a recommended policy
that protects the physical privacy and dignity of all students in locker rooms and similar facilities while still providing a solution for school officials concerned about students struggling with their gender identity. The letter specifically notes that districts should no longer rely upon a “guidance” document issued last year by the U.S. departments of Education and Justice, which the two agencies recently rescinded
due to its lack of consistency with federal law.
The ADF letter explains that, contrary to what some mistakenly believe, no federal law requires public schools to allow boys into girls’ restrooms or girls into boys’ restrooms. In fact, school districts could be exposing themselves to legal liability for violating students’ privacy rights.
“Schools have a duty to protect the privacy and dignity of all students,” said ADF Senior Counsel Matt Sharp. “No child should be asked to share an intimate setting—like a locker room or shower—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 dignity.”
The ADF letter accompanying the model policy cites pertinent legal precedent, including court rulings that support the ability of public schools to limit locker rooms and restrooms to members of the same sex for privacy and safety reasons without violating Title IX, a federal law concerning sex discrimination in public school programs and activities.
“It is well-settled law that public school districts enjoy broad authority and discretion in operating their schools…,” the ADF letter states. “It should go without saying that this discretion includes regulating the use of school restrooms and similar facilities. In this context, protecting every student’s privacy and safety is at a premium. Allowing students to access restroom and locker room facilities dedicated to the opposite sex accomplishes neither goal, and has a high probability of violating the constitutional right to bodily privacy enjoyed by all students. The most important point is this: schools have broad discretion to handle these delicate matters, and the federal government supports the authority of school districts to craft local policies to address student privacy.”
“Much of the confusion over privacy facilities was driven by a short-lived effort by federal officials to redefine ‘sex’ to mean ‘gender identity’ under Title IX via a ‘Dear Colleague Letter’ to school officials in 2016,” the letter continues. “That misguided effort ended…when the U.S. Departments of Education and Justice issued a Dear Colleague Letter that rescinded the 2016 Letter which had wrongly told schools to allow students to use showers and restrooms on the basis of their professed gender identity or risk losing federal funding. The Departments rejected any further reliance on that rescinded guidance
…. We advise school districts to continue to handle these matters as they arise utilizing the advice given in this letter or to adopt the model policy proposed by ADF or a substantially similar policy.”