Commentary

No, Federal Law Does Not Require Entities to Allow Men Into Women’s Restrooms

By Matt Sharp | April 26, 2016 | 10:12am EDT
(AP Photo/Toby Talbot)

Ignoring the privacy and safety rights of children, major corporations like Target and PayPal are pressuring state governments to allow men and boys into the public school restrooms of women and little girls simply because the male claims to identify as a female—something that can obviously be abused … and has been. Contrary to what you may have been told, federal law does not require this.

First, all students have a constitutional right to bodily privacy. As one court explained, “shielding one’s unclothed figure from the view of strangers, particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.”

That court ruling was talking about prisoners. Convicted felons, who give up many of their rights when they are hauled off to prison, do not give up their fundamental right to privacy. Thus, courts have even required prisons to reassign female guards who patrolled near restroom and shower facilities in order to protect the privacy of the inmates.

If convicted felons have a right to privacy when using the restroom or changing, how much more so do our children when they are at school?

Second, federal law authorizes schools to maintain separate restrooms and locker rooms based on biological sex. Title IX is a federal law that requires schools and colleges to provide equal opportunities and facilities for men and women. It was written to combat discrimination against women; however, activists have recently used it to argue that denying people who identify as transsexual use of restrooms that correspond to their claimed gender identity is sex discrimination.

The problem with that argument is that Title IX and its regulations say the opposite. According to the law, schools “may provide separate toilet, locker room, and shower facilities on the basis of sex.” In other words, under Title IX, a school can designate certain facilities for biological males and other facilities for biological females. That isn’t discrimination; it’s common sense.

Finally, the vast majority of court decisions on this issue have ruled in favor of schools that declined to allow a student who identified as transgendered to use the restroom of the opposite sex. In one case, a female student demanded access to male locker rooms and restrooms at the University of Pittsburgh. While it allowed the student to go by a male’s name, dress like a male, and even enroll in a male weightlifting class, the university had to protect the privacy of its student body and thus would not allow the student to use the male restrooms and locker rooms.

The student sued, and the court ruled for the school. The court held that “the University’s policy of requiring students to use sex-segregated bathroom and locker room facilities based on students’ natal or birth sex, rather than their gender identity, does not violate Title IX’s prohibition of sex discrimination.”

As for the recent 2-1 decision from the U.S. Court of Appeals for the 4th Circuit that appears to be favorable to the U.S. Department of Education’s redefinition of “sex” to mean “gender identity” in Title IX, it is important to note that the court did not order the Gloucester School District in Virginia to allow the female high school student in that case to use the male restrooms. Rather, it sent the case back to the lower court to make that decision—a recognition that the privacy rights of other students may still require separate facilities based on sex.

As the dissenting judge rightly noted, the court’s decision “misconstrues the clear language of Title IX and its regulations … . Title IX’s allowance for the separation, based on sex, of living facilities, restrooms, locker rooms, and shower facilities rests on the universally accepted concern for bodily privacy that is founded on the biological differences between the sexes.”

No school district should sacrifice the privacy and safety of all of its students to satisfy the demands of those who want to disregard the root distinctions between males and females.

Alliance Defending Freedom, for whom I work, offers a better solution. Its model policy requires students to use the facilities of their biological sex, but it also offers an accommodation to any student not comfortable using the communal restrooms of their sex by allowing them to also use any of the school’s single-stall restrooms (such as in the nurse’s office, the faculty lounge, or most any other place on campus that has such restrooms).

By adopting this policy, school districts would not only be in full compliance with federal law, but they would show that they take seriously their duty to provide a protective environment for every student in their care.

Matt Sharp is legal counsel with Alliance Defending Freedom, an alliance-building, non-profit legal organization that offers a legally sound model student privacy policy to schools and school districts nationwide.

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