(CNSNews.com) -- A five-year-old girl allegedly was sexually assaulted at school in the girls’ bathroom by a boy who identifies as gender-fluid, sparking an investigation by the U.S. Department of Education’s Office for Civil Rights (OCR) into the Decatur, Georgia school’s transgender bathroom policy.
According to a legal complaint by Roger G. Brooks of the Alliance Defending Freedom (ADF) and Vernadette R. Broyles of Georgia Adoption & Family Law Practice, the boy, who was also five years old, reportedly assaulted the girl as she was leaving a bathroom stall at Oakhurst Elementary School in November 2017.
“As [Victim] was emerging from a stall, the Assailant pushed her against a wall, pushed his hand between her legs, and repeatedly felt and poked at her genitals … while she struggled and called out for him to stop,” reads the legal complaint, dated May 22, 2018. “No one came to help.”
The boy had permission to enter the girls’ bathroom under a policy that “required” schools to “admit boys who identify as female into girls’ restrooms, locker rooms, and shower areas on school premises,” according to the legal complaint.
Prior to the 2016-2017 school year, boys were not permitted to enter restrooms for girls. However, in a July 26, 2016 email, the Superintendent of the City Schools of Decatur, David Dude, told school staff members that students should be permitted to use the restrooms that matched their gender identities.
“To be clear, here are some examples of situations related to gender identity and how I expect them to be handled in compliance with this policy,” Dude wrote. “For purpose of these examples, assume this student was assigned the sex of male at birth, and now identifies as female.”
“This student should be treated the same as any female student…. She should be allowed to use the female restroom,” Dude wrote.
Dude “did not disclose this email to parents in the District,” according to the legal complaint. Parents of the Decatur school system were therefore largely unaware of the new bathroom policy.
While the girl did not mention her assault to anyone during the rest of the school day, she complained to her mother, Pascha Thomas, that evening about vaginal pain and, “after some questioning,” told Thomas what had happened.
The following day, Thomas spoke with school officials, who “refused” to take any steps to prevent the situation from happening again, according to the legal complaint.
School officials allegedly would not tell Thomas “what steps they were taking or would take to protect her daughter against any repetition of the assault she had suffered,” reads the complaint. “They refused to offer any assurance that her daughter would not again be confronted by boys in the girls’ restroom.”
School officials also reportedly refused to move the boy out of the girl’s class and into a different classroom, and Thomas was forced to take her daughter out of school because of the risk to her daughter’s safety.
Then, school officials apparently tried to blame Thomas for the assault.
On Dec. 8, 2017, Thomas met with the Oakhurst Elementary school principal, Marcy Fowler, and others. After the meeting, school leadership contacted the Georgia Department of Family and Child Services (DFCS) to report a potential sexual assault, but “inexplicably” identified Thomas as “the responsible party,” causing the DFCS to visit Thomas’ home and question her family and friends, according to the legal complaint.
Brooks and Broyles suggested that school leadership “sought to retaliate against a low-income, African-American single mother and intimidate her into silence by sending the Department of Family and Child Services to her door to interrogate her children and inspect her home.”
According to Arthur Manigault, Compliance Team Leader of the OCR of the Department of Education (DOE), the OCR will investigate “the following legal issues:
“Whether the District failed to provide a prompt and equitable response to a report that the Student was subjected to sexual assault, and, as a result, was subjected to a sexually hostile environment, including whether the District implementation of the Policy contributed to creation of a hostile environment for the Student and other girls, in noncompliance with Title IX and its implementing regulations…
“Whether the District retaliated against the Student’s Parent for reporting the sexual harassment incident, in noncompliance with Title IX and its implementing regulation.”
Title IX is a law which, according to the U.S. Department of Justice, “prohibits discrimination on the basis of sex in any federally funded education program or activity.”
According to a video by the ADF, Dude still has not reached out to Thomas to discuss the assault.
“Superintendent Dude has never spoken with Pascha regarding her daughter’s sexual assault,” according to the video.
In a statement to CBN News, Dude said that the school district “is committed to supporting all students.”
"We are aware of the unfounded allegations made by the Alliance Defending Freedom," Dude said. "We fully disagree with their characterization of the situation and are addressing it with the Office of Civil Rights."
According to the legal complaint, as of May 2018, “the Oakhurst Elementary leadership” had “never initiated any significant investigation of this Assault” or “questioned the Assailant about the allegations.”
According to the legal complaint, the girl “suffered nightmares” after the assault, “crying in her sleep and saying, ‘Stop! Stop!’”
The transgender bathroom policy does not include any “limitations or safeguards” to protect girls from assault or fear, according to the legal complaint’s description of the policy.
“On its face, the Policy lets students choose their own bathroom,” the legal complaint reads. “It turns solely on a student’s self-declared (and perhaps fluid) ‘identity,’ without any requirement of certification by a psychiatrist or other physician.”
Brooks and Broyles pointed out that the policy could create a situation in which boys could take advantage of the rules to purposely assault girls.
The lawyers wrote, “girls and parents may reasonably fear the risk of simply misbehaving boys who may take advantage of blurred rules as to who is allowed in which restroom in order to intentionally violate the privacy of girls. Creative efforts by adolescent boys to spy on girls while they are undressed is no new thing in this world.”
In the complaint, the lawyers argued that the violation of girls’ privacy was a deliberate aspect of Oakhurst Elementary’s bathroom policy, not just a side effect.
“The Decatur Schools wish to ‘affirm’ boys who in some sense identify as girls by authorizing them to mingle with girls in areas that are reserved to single-sex use precisely because these areas involve some degree of undress, personal hygiene, and proximity that is considered to be inappropriate, intrusive, or potentially embarrassing between individuals of the opposite sex,” Brooks and Broyles wrote in the complaint.
“In other words, the violation of privacy of girls is not an unfortunate side effect of the policy – it is an essential goal of the policy,” the lawyers added.
The lawyers also noted that officials of the Decatur school system did not “make any inquiry” into possible “physical risks to girls” or “psychological stress” for girls, including those who may have been previously abused or assaulted.