Despite the
recent ruling by the U.S. Department of Education against a suburban Chicago high school, no school has to allow boys in girls locker rooms, or vice-versa. That's according to Matt Sharp, legal counsel with the Alliance Defending Freedom, or ADF — a group that offers free legal counsel to any school that adopts its policy on transgender issues and gets sued.
"We believe (our policy) is legally sound," Sharp said. "And, to show you how serious we are, if you adopt our policy and you get sued, the Alliance Defending Freedom is willing to represent you free of charge, so that you're not out-of-pocket for taking a stand on what is right and what common sense says we ought to do."
The ADF advocates separate changing facilities for transgender students and sent its sample policy to Palatine Township High School District 211, where a male student, who identifies as female, is demanding use of the girls locker room.
The school granted the student access to the girls locker room, but required that he change clothes behind curtains. Now, the Department of Education is citing the school and says it must allow the transgender student complete access to the girls locker room. Sharp says this requirement not only defies natural law; it also defies legal precedent and the intent of Title IX.
"If you look at what the precedent says, and what the most recent courts looking at this issue have found, it's that schools can have these separate facilities," Sharp said. "They can take steps to protect the privacy of their students as the Palatine Township School District is doing here, requiring the (transgender) student to change in a different area or a curtained-off area ... all with the goal of protecting the privacy of the females in the locker room."
Sharp also noted that Title IX specifically allows schools to "provide separate toilet, locker room, and shower facilities on the basis of sex." So, the Department of Education has zero basis for saying that the Palatine school is violating Title IX.
Courts Support Gender-Specific Locker Rooms
Given the Education Department's heavy-handed directives, Sharp said many schools feel they must comply and allow students in opposite-gender facilities. However, courts have consistently ruled in favor of schools that require students to use facilities that match their biological gender.
In March, a Pennsylvania federal court ruled that the University of Pittsburgh did not violate the U.S. Constitution or Title IX when it barred a female student, who identified as male, from using men's locker rooms and bathrooms. Similarly, in September, a federal court in Virginia dismissed a discrimination claim by a female-to-male transgender student who sought access to the male bathrooms at a public high school. The court ruled that "[n]ot only is bodily privacy a constitutional right, the need for privacy is even more pronounced in the state educational system. The students are almost all minors, and public school education is a protective environment."
Still, the Department of Education is threatening to take away all federal funding from the Palatine Township School District if it doesn't comply with the department's directive to allow a transgender student access to the female locker room. However, before the federal government can strip the district of funds, it must first win its case in court, Sharp said. Given the clear legal precedent, Sharp predicts that the federal government will lose. He added that the school has not contacted the ADF about representing it.
An Agenda-Driven Administration
If District 211 loses, the Department of Education and the American Civil Liberties Union, which is representing the transgender student at the school, will likely appeal the decision. Already, both are appealing the Pennsylvania and Virginia federal court opinions. Sharp said the Obama Administration is intent on pushing this issue all the way to the Supreme Court.
"Their goal is for this to be a national thing," he said, "that every school district in the country is subject to this same requirement – that you can't have separate facilities, that you've got to allow a student to use the bathrooms of the opposite sex simply by claiming to be transgender."
This latest push for transgender rights began last year. That's when the Department of Education issued a document claiming that Title IX's sex discrimination prohibition "extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity." However, in a letter on Transgender Issues, the Alliance Defending Freedom noted that the department's document is not legally binding. It also noted that the Virginia Court stated in its ruling that the Department of Education lacks the authority to unilaterally redefine Title IX.
What Parents & School Districts Can Do
Fighting the federal government can be daunting for local school districts. Yet, it's a fight Sharp insists that local school districts can win. However, if school districts are unwilling to resist the demands of the federal government, Sharp urges parents to call the ADF for help. He said the ADF receives about 20 calls each month from parents upset about their school's handling of transgender issues, and the organization is eager to help.
"We realize this is an important battle," Sharp said. "This is one that is honestly going to shape the future of America. If you get a generation that grows up being told, 'You can't have separate facilities for guys and girls . . .,' What impact is that going to have on everything our country has long believed – that there are biological differences between men and women?"
Once properly informed, parents then need to show up at school board meetings and inform board members about the law, Sharp said. "They need to be equipped with these other court cases, and findings that federal courts have said you're not in violation of Title IX if you maintain these separate facilities. We've found that to be very effective."
According to the American Foundation for Suicide Prevention and the Williams Institute, four in 10 transgender individuals will try to kill themselves at some point in their life. Yet, as I noted in an article last year, studies also show that 70-80% of children with transgender feelings spontaneously lose those feelings as they mature. This certainly calls into question whether accommodating self-identified transgender students is truly a compassionate course of action or a permanently damaging one.
"We're doing a very dangerous experiment with kids and not really sure of the consequences," Sharp said. "We need to take a step back and make sure we're not doing more harm than good."
