SCOTTSDALE, Ariz. – An increasing number of public schools are allowing transgender students to use the restroom and shower facilities of their choice, regardless of their biological gender, and despite the objections of many parents and the discomfort of some students.
Some districts are clearly doing so because they believe it’s federal law. Others fear retribution from the federal government, or groups like the American Civil Liberties Union, if they fail to adopt such policies.
But federal law does not require schools to allow open restroom and shower access for transgender students, according to attorneys at Alliance Defending Freedom, a Christian-based legal organization headquartered in Scottsdale, Arizona.
There is free legal assistance available for districts that choose to maintain traditional, single-sex restrooms and locker rooms, they said.
“There are no legal requirements for them to do this,” Jeremy Tedesco, senior legal counsel for ADF, told EAGnews. “Most schools think there is because the ACLU and other groups tell them that’s the case.”
Many school districts are under the impression that if they deny transgender students access to the facilities of their choice, they will be in violation of the federal Title IX law, which prohibits discrimination based on gender in any school receiving federal financial assistance.
They got that impression from an April 2014 memo from the U.S. Department of Education’s Office for Civil Rights, which told schools throughout the nation that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity.”
School districts have taken that seriously.
Consider the following statement from the Boise, Idaho school district, regarding its recent decision to allow a male junior high student who self-identifies as a female to use girls’ restrooms.
“The U.S. Department of Education Office for Civil Rights has instructed schools nationwide that sex discrimination prohibitions in federal law include protections for gender identity. As such, under federal civil rights law, the District is required to provide access to public facilities consistent with the student’s gender identity.”
That’s not true, according to Alliance Defending Freedom.
“Some may wrongly assert that Title IX requires schools to allow children who identify as transgender to use the facilities of their choice,” says a legal memo prepared by ADF attorneys. “But that is wrong. Title IX does not require schools to allow those who identify themselves as transgender to use their chosen facilities.
“Significantly, no court has ever interpreted Title IX as requiring schools to give students access to opposite sex restrooms and changing areas.”
The guidance document sent by the DOE Office for Civil Rights does not alter the legal reality, according to the legal memo.
“That significant guidance document has no binding legal authority whatsoever,'” the memo says. “To the contrary, federal regulations make clear that significant guidance documents issued by executive agencies are ‘non-binding (in) nature’ and should not be ‘improperly treated as legally binding documents.'”
Lawsuits and bullying tactics
Despite the apparent lack of legal teeth in the federal effort to accommodate transgender students, schools that refuse to cooperate may face retaliation or bullying tactics.
When the Stafford, Virginia school board voted to stop a fourth-grade boy who self-identifies as a girl from using girls’ restrooms, ACLU staff lawyer Joshua Block responded by saying, “On its face, it appears to be a very clear violation of Title IX,” according to BuzzFeed.com.
Block when on to say that the ACLU is “ready to make sure that all school boards in Virginia are treating their students the way that Title IX requires,” the website said.
BuzzFeed.com also reports that “In February, the U.S. Department of Justice again affirmed its position that transgender students may use the restroom reflecting their gender identity by filing a brief in federal court for a Michigan case involving a 14-year-old transgender student banned from the boys’ restroom.”
The Gloucester County, Virginia school board recently adopted a policy reserving student restrooms for children of the same biological gender. A transgender student, with the assistance of the ACLU, responded by filing a formal civil rights complaint with the Justice Department.
The Justice Department sent a letter to the district, saying that Title IX regulations “require the school to ‘treat transgender students consistent with their gender identity,'” according to DailyPress.com.
The DOJ asked the district to revise its policy, the news site said.
One Gloucester school board member, Kimberly Hensley, said she feared the board’s stance would cost the district a great deal of money.
“No matter how you feel about it, the position that the DOJ and DOE takes is clear, and federal dollars are at stake,” Hensley was quoted as saying by DailyPress.com.
That financial concern clearly got the attention of the district. The board’s attorney send a letter back to the DOJ, asking for “a summary of the process involved in withholding a school’s federal money based on a claim of sex discrimination against a student,” the news site said.
All public school districts get a significant amount of financial assistance from the federal government. Would the Department of Education threaten to withhold that money if schools don’t adopt the desired transgender policies?
Perhaps, according to Mark Blom, an attorney for the National School Boards Association.
“It’s going to create a real problem for school districts because the department has the right to go in and attempt to require the district under threat of losing federal funding to meet the standard the department articulates,” Blom told Brietbart.com.
Schools can fight back
Tedesco called the legal bullying of school districts “an unfortunate tactic” resulting from a “conspiracy of leftists, involving the Obama administration, to put pressure on school boards to adopt these kinds of policies.”
“It’s based on misinformation,” he said. “Title IX prohibits sex discrimination (based on biological gender) and that’s it. They are trying to bypass Congress and include terms that Congress never included. They are trying to bypass Congress and ignore the law.”
Tedesco notes that proposed legislation in several states, which would prohibit transgender access to opposite gender facilities, includes language allowing schools to make other special accommodations for transgender students.
Supporters of those bills consistently express concern for transgender students, but also say the privacy and dignity of the vast majority of students should be protected. They want find a balance that works for all students.
But federal bureaucrats and progressive groups are not interested in any sort of compromise, Tedesco said.
“The secular groups pushing these laws want full access and 100 percent capitulation,” he said. “They have no compromise in them. It’s everything or nothing.”
While school districts may worry about retaliatory tactics by the government or ACLU, they should also be concerned about potential lawsuits from parents or others who oppose giving transgendered students full access to single-sex facilities.
“They are courting legal challenges if they adopt this type of policy,” Tedesco said. “The ACLU may do something, but the flip side is true, as well. They could be courting privacy lawsuits, harassment lawsuits, all sorts of things.”
Alliance Defending Freedom has sent a model policy to school districts across the nation, urging them to adopt it. The policy preserves single-sex restrooms, shower facilities and other changing areas for students, based on biological gender, while allowing for separate accommodations for transgender students.
“We’re telling them ‘You don’t have to do this – we will defend you free of charge if you adopt our policy,” Tedesco said.
“Schools should act in the interests of all kids. This is an imminently reasonable, legally defensible position. I would think school districts would win that case every time.”