“Placing students in circumstances where their privacy is compromised and they are at risk of bodily exposure in the vicinity of members of the opposite sex is not only demeaning and humiliating, but also denies individuals’ personal dignity,” said a legal brief filed by Alliance Defending Freedom on behalf of the concerned individuals.
“Courts have thus refused to require schools to open sex-specific locker rooms, showers, and restrooms to all students because permanent emotional impairment could result from the deprivation of students’ bodily-privacy rights,” the brief continued. “Instead, they have allowed schools to craft common sense solutions that respect every student’s privacy.”
The policy separates restrooms based on biological sex, while offering a private alternative facility for students who are uncomfortable using the restroom for their sex.
The restroom policy has been challenged in court after a student who was born a girl but identifies as a boy began using the boys’ restroom at school.
The student refused to use a private bathroom because doing so would “make him feel even more stigmatized,” according to court documents, which also said, “Being required to use separate restrooms sets him apart from his peers, and serves as a daily reminder that the school views him as ‘different.’”
A federal court initially denied the student an injunction against the school board’s restroom policy. The circuit court remanded that decision and sent it back, and in June the district court judge ruled that the school district had to allow the student access to the men’s bathroom.
The Supreme Court in August placed a temporary stay on the federal court ruling ordering that the school board must allow the student to use the men's restroom. The stay will last until the Supreme Court either refuses to hear the case or hears and decides the case.
In its friend-of-the-court brief, Alliance Defending Freedom joins its voice to teachers, U.S. states, former Secretary of Education Bill Bennett, and more than 100 Congress members in asking the Supreme Court to hear the case and overturn the 4th Circuit’s ruling.
“(C)ourts have recognized that the constitutional right of bodily privacy is defined by reasonable expectations, not the bohemian leanings of a few,” the ADF brief said, “and that laws aimed at eliminating sex discrimination were designed to create equal opportunities for women and men, not to force new privacy mores on the American public.”
Gary McCaleb, senior counsel for Alliance Defending Freedom, said that the Circuit’s ruling is “out of step with the law and previous federal court precedent.”
“Decades of court decisions have established that, in light of the right of bodily privacy, no law grants opposite-sex persons access to single-sex facilities, where the interest in privacy is obviously strongest and bodily exposure is so common.”
The U.S. Catholic bishops have spoken about treatment of children identifying as transgender.
“Especially at a young age and in schools, it is important that our children understand the depth of God's love for them and their intrinsic worth and beauty. Children should always be and feel safe and secure and know they are loved,” Bishop Richard Malone of Buffalo and Archbishop George Lucas of Omaha stated on May 16.
Bishop Malone chairs the U.S. bishops’ family life and youth committee; Archbishop Lucas chairs the bishops’ Catholic education committee.
Nevertheless, federal agencies’ treatment of “‘a student's gender identity as the student's sex’ is deeply disturbing,” the bishops continued, citing Pope Francis’ words in Amoris Laetitia that “the young need to be helped to accept their own body as it was created.”
There have been “legitimate concerns about privacy and security on the part of the other young students and parents,” the bishops added of policies that recognize students’ gender identity over their biological sex.
“As Pope Francis has recently indicated, ‘biological sex and the socio-cultural role of sex (gender) can be distinguished but not separated’,” the bishops added.