In Part 2 of a two-part series, NC Family president John Rustin continues a discussion he began last week with Matt Sharp, legal counsel with Alliance Defending Freedom (ADF), about an important case in Virginia that is currently before the Fourth Circuit Court of Appeals and could have a significant impact on the privacy, safety and health of students in public schools in North Carolina.
INTRODUCTION: Matt Sharp is Legal Counsel with Alliance Defending Freedom, where he plays a key role on the Freedom of Conscience Team. Since joining ADF in 2010, Matt has worked on a number of important cases advancing religious freedom, particularly for elementary students in school. Matt is with us to continue a discussion we began last week about an important case out of the state of Virginia that is currently before the United States Court of Appeals for the Fourth Circuit, which could have a significant impact on the privacy, safety and health of students in public schools in a number of states, including North Carolina.
JOHN RUSTIN: Matt, tell us about this case, G.G. vs. Gloucester County School Board, and the Virginia school district whose bathroom policy is being challenged by the ACLU and the Obama administration.
MATT SHARP: G.G. is a female student in the Gloucester school district in Virginia, and was starting to identify as a male, dressed like a male, go by a male’s name, and eventually started demanding to be allowed to use the male restrooms and locker rooms. Initially, the school district said, “Yes,” and the Superintendent said, “Yes, we’re going to allow you to do that.” And this happened for about six to seven weeks. There hadn’t been any consultations, there hadn’t information given to parents that this girl was now going to be in the boys restroom and sharing the facilities with their boys. And so a lot of the parents became concerned. We were contacted by parents at ADF, and we sent a letter to the school explaining why the law protects a students’ right to privacy, and why a better course of action is to allow this transgender student to use a single stall restroom, a place where her privacy can be protected, but protecting the rights of everyone else by maintaining specific and distinct facilities for boys and girls. Fortunately, the school district agreed, and the board reversed course, adopted a good policy, and that’s what ultimately led to this student suing the school district with the assistance of the ACLU, saying you’re violating Title IX and my constitutional right by not allowing me, a girl, to use the guys’ bathroom…. This is going to be a very significant case, both in Virginia and that region, but I think even across the country. While there have been lots of courts to look at this issue and to say that Title IX and other laws do not specifically address transgender students, this is the first court case that the federal court of appeals has addressed on this bathroom access issue under Title IX. And so the courts decision on this, and it’s going to be argued on January 27, is really going to set a tone [amnd determine]: are schools required to allow transgender students to use whatever bathroom they want, or is common sense going to rein supreme, is Title IX going to be respected and are schools going to retain the authority to impose these common sense rules when it comes to bathroom access? Every school in Virginia and throughout the Fourth Circuit [including North Carolina] is going to be directly influenced and given some clear direction based on the outcome of what the Fourth Circuit decides.
JOHN RUSTIN: It really seems that one of the big issues in this case is the freedom of local schools districts, parents, and others within the community to deal with and determine these types of policies that may come up with respect to transgender students without intervention from the federal government. The Obama administration is really driving a lot of this effort, and has gotten engaged in this lawsuit. In addition to protecting the privacy right of students, isn’t keeping these policies at the local school district level important to make sure that parents and others in the community have an opportunity to have input and to express their views on how they want their children to be treated within the school system?
MATT SHARP: Absolutely. We’re seeing more efforts by the federal government to encroach upon the local authority of local schools. Courts have always said that educational decisions are best left to local school boards. They know their students, and they know their community, and they know what is in the best interest of their kids. And so that’s why even with Title IX, when it came to the bathroom issue, Congress said we’re going to let schools decide how best to protect the privacy and safety of students when it comes to bathrooms and locker rooms. They didn’t do a one-size-fits-all, but they delegated that to the local schools. What we’re seeing is an Obama administration that is subverting that and telling schools, “We don’t care what you believe, we don’t care what your students want, and we don’t care what your parents want. You either adopt our way of thinking, [and] our radical views on all of this that would open up the bathrooms to [transgender students], or we’re going to harm your students by stripping them of federal funding.” On average, that’s about $1,200 dollars per student per year. For a lot of schools this is a big chunk of their budget, and educational opportunities would be dramatically impacted by the loss of that funding. But because they’re using the power of the pocketbook and coming in and threatening schools with losing this federal funding, the government is forcing their own ideology of how things should be run on these local schools. And so as a matter of pure local authority and the ability of schools to regulate and run themselves, this is a matter of vital importance for school boards to stand up and say, “Enough is enough. Stay out of our business, let us decide what is best for the kids in our school.”
JOHN RUSTIN: Clearly, ADF has been on the front lines of this issue. In fact, ADF developed and sent out a model bathroom policy for schools across the country that is aimed at addressing these types of issues with students who do not identify with their biological sex. Tell us about the ADF recommended policy, and why it really is the best policy for schools to adopt in order to effectively deal with these issues types of issues and protect all students?
MATT SHARP: What we offer is a very common sense simple policy that any school can understand, but a policy that also shows respect and compassion for every student in the school. And it basically has three simple parts. Number one is we define what “sex” means because we want to get away from the Government’s view that sex includes gender identity and all these other things. We define it as clearly male and female, and it’s based on what your birth certificate says, and what the doctor and parents decide, if you’ve got an intersex child when that child is born. So it addresses all of that. Number two it says, “Schools should designate restrooms as either boys or girls, and students and others are required to use the bathroom of their biological sex.” Again, [these are] common sense protections, and a common sense way of structuring things. But in the third part, it realized that there are some students, like transgender students, or even others that just may be very shy and have an increased sense of privacy that are not comfortable using the communal restroom of their biological sex. So it says, “Schools can designate a single stall restroom,” like one in the nurses’ restroom or the teachers’ lounge or any other one that’s available, and give that as an accommodation, as a place where a transgender student or any other student wanting more privacy can use the restroom, change, and have their privacy protected as well. It’s a win-win for everybody, and it’s a way to show compassion and respect and dignity to every student in the school. So, that’s what we’re encouraging schools to adopt. It was basically the policy that the Gloucester school district adopted as well, and so it’s a policy that not only in our view complies with Title IX and the law, but that even a federal court has looked at and said, “Yes, this is common sense, and it’s consistent with the law, and I’m going to uphold it.”
JOHN RUSTIN: North Carolina’s governor Pat McCrory recently signed onto a amicus brief that was filed by the Attorney General of South Carolina, supporting the school district’s policy. Alliance Defending Freedom also submitted a friend-of-court brief in the case as well. What is ADF arguing in its brief in terms of why the Gloucester County school district’s policy should be upheld?
MATT SHARP: Our focus is on the privacy issue. We submitted a brief on behalf of parents, students, and community members in Gloucester, the people directly impacted by this policy. And what we raised is what courts across the country have concluded, that there is a fundamental right of privacy to not be viewed unclothed or in similar circumstances by members of the opposite sex. One of the cases that those arise out of is a situation involving prisoners, where you’ve got these male prisoners who’ve been convicted of a crime and are in prison, and they filed a court suit against the prison because there were female guards patrolling near the restrooms and shower areas, and these prisoner said, “Look, we may have given up lot of our rights when we got sent to prison, but we haven’t given up our fundamental right to privacy.” And the courts agreed, and said, “Yes, prisoners, you’re right, [the female guards] have to be reassigned to some other part of the prison.” So, if these male prisoners have a fundamental right to privacy and to not be viewed changing or showering by members of the opposite sex, how much more so do these students in Gloucester and across the country, have that same constitutional right? And that’s the basis of our argument—that there is a clear right here. Again, we’re not saying that the transgender student shouldn’t be afforded a safe place, they should, but it shouldn’t come at the cost of violating the rights of privacy of these students in Gloucester and across the country.
JOHN RUSTIN: Apparently the ACLU and the Obama administration are not in agreement with that. I think they are really pushing a much more aggressive agenda, and they unfortunately do not see it as a common sense solution, which it absolutely is, but are more interested in the political ramifications and pushing a far left agenda, which is their goal.
Matt, what’s next in this case? What happens if the Fourth Circuit sides with the ACLU and the Obama administration and forces this Virginia school district to allow transgender students to use the locker and restroom of their choice? Do you think this case will eventually go to the U.S. Supreme Court?
MATT SHARP: I think there’s a strong chance for that. I do think there’s a good chance of our side and common sense winning out on this case. Just like the lower court did, all the Appellate Court has to do is look at Title IX that everyone knows was designed to do deal with males and females and discrimination among them, and say, “If Congress wants to change it, let Congress do it, but the court are not going to redefine what sex means, redefine what Title IX means, if Congress wants to do it we’ll give it to them.” And I think there’s a good change that this issue may get appealed to the U.S. Supreme Court, either way it goes. I think a lot of people are realizing that there are sweeping consequences for our nation if this policy is struck down, and if basic privacy protections are struck down by the Fourth Circuit. So, there’s a good chance the Supreme Court will look at it, because it involved the federal law and an area that has been a hot topic and that lots of people across the country are very interested in. Again we would hope they would do a ruling in favor of common sense, and in favor of a basic understanding of male and female and biology.
JOHN RUSTIN: It would seem that the implications of this, if this case were to go in the other directions and the courts recognize a right for transgender students or individuals who identify themselves as different from their biological sex, that not only could it apply to schools, but it could apply to any other public accommodation that exists in our country. So, public parks, entertainment venues, basically any area where the public is welcomed could ultimately fall under a similar type of policy. Is that your understanding?
MATT SHARP: Absolutely, and we need to look no further than Houston, Texas. Houston’s city council passed a law that basically outlawed gender identity discrimination, and some of the consequences were businesses, places of public accommodation, theatres, parks, restaurants, etc. were going to be told, “You have to allow men into women’s restrooms, and visa versa.” Well, people started looking at this, such as business owners and parents and community members, and saying, “We’re not comfortable with this.” And so they revoked and overturned the bad decision of the city council by I think it was by a 62 percent majority, disagreed with this and said this is not a society, this is not a city that we’re comfortable creating. And that just goes to show you the consequences with this, but also what happens when people step back and take a look at the consequences of these laws, and just come to a common sense conclusion that there’s a better path forward. There’s a way we can provide a safe place and accommodate the needs of transgender people, but in a way that does not compromise the safety and privacy of everyone else.
JOHN RUSTIN: Matt, we are almost out of time for today. Before we close where can our listeners go learn more about Alliance Defending Freedom and this case?
MATT SHARP: They should visit us at ADF, short for Alliance Defending Freedom, at www.adflegal.org, where they can learn more about this case. And if their school is facing this and considering a policy, we want them to contact us, so we can send a letter and informational materials to the school. And we stand by what we say because if a school will adopt our policy, we may be able to represent that school free of charge, if they get sued by the ACLU or a transgender student or something like that. We think every school should be able to defend our policy, and take a firm stand for dignity, privacy, and the safety of every student under its care.
JOHN RUSTIN: We want to encourage parents to not only visit your website and avail themselves of that information, but also to keep their eyes and ears very open. Be aware of what’s taking place in the school districts in your areas of the state so that if something like this comes up, with the help of ADF, you will know better how to respond to that! Thank you, Matt Sharp, for joining us this week on Family Policy Matters and for the great work that you’re doing at Alliance Defending Freedom.
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