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 Supreme Court placed a temporary hold on the 4th Circuit’s mandate until the high court has a chance to decide if it will review the case. The ADF brief—along with numerous others that include professional educators, former Secretary of Education Bill Bennett, multiple states, and more than 100 members of Congress—ask the justices to take up the case and reverse the 4th Circuit’s decision.
“Schools have a duty to protect the privacy and safety of all students. That’s a standard that other courts—including the 4th Circuit itself—have previously upheld,” said ADF Senior Counsel Gary McCaleb. “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. We are encouraging the Supreme Court to reverse the 4th Circuit’s ruling, which is out of step with the law and previous federal court precedent.”
The American Civil Liberties Union 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 has filed lawsuits in Illinois, Ohio, and Minnesota 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’s regulations specifically authorize 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.”
As the ADF friend-of-the-court briefs explains, “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…. 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. Instead, they have allowed schools to craft common sense solutions that respect every student’s privacy….”
“These courts have recognized that the constitutional right of bodily privacy is defined by reasonable expectations, not the bohemian leanings of a few,” the ADF brief continues, “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…. Certainly, when the right to bodily privacy protects even an imprisoned felon from unnecessary exposure to the opposite sex, then it surely protects the adolescent girl from the same risk of exposure to students who are indisputably biologically and physically a male.”