Protecting Student Privacy At School

This is family policy matter program is produced by the North Carolina family policy Council of profamily research and education organization dedicated to strengthening and preserving the family and up from the studio here is John Rustin, Pres. North Carolina family policy Council like you for joining us this week. Profamily policy matters.

It is our pleasure to have met sharp with us on the program that is legal counsel with alliance defending freedom 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 matters with us to discuss 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, we consider the outcome of this case to be very important and apparently others do as well is North Carolina Gov. Pat McCrory recently signed his name to a friend of the court brief filed in this case met. Welcome to the program. It's great to have you with us on family policy matters much great to be here when we pretend to be back with us and talk about this very important issue. No matter. As we begin for the benefit of our listeners tell us about this case which is G GV Gloucester County school board and the Virginia school district whose bathroom policy is being challenged by not only the ACLU but also the Obama administration right. This is the scenario that were things pop up in school districts across the country so Gigi with 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 mail, restrooms and locker.

Initially the school districts that yes I yell were going to allow you to do that this happened for about 6 to 7 weeks.

What a lot of parents started learning about this student started learning about this and were concerned that their right to privacy was being violated. All of this, they had many consultations.

There hadn't been information given to parents about this girl was now going to be in the boys restroom in sharing the facilities with your voice and so a lot of the parents became concerned and went to the school board and said look were not comfortable with all of this were not here.

To attack GG or anything like that, but rather you got to take into account the privacy rights of our children to make sure that those are being respected. We were contacted by parents ADF and and we sent a letter to this blaming why the law protects students right to privacy why a better course of action is to allow this transgender student to use a single stall restroom place where her privacy can be acted but protecting the rights of everyone else by men maintaining specific distinct facilities for boys and girls. Fortunately, the school district agreed and the board reversed course adopted a good policy and that would ultimately led to the student suing the school district with the assistance of the ACLU saying you're violating title IX my constitutional right by not allowing me a girl to use the guys bathroom background now met his understanding of federal district court ruled in favor of the Virginia school districts, restroom and locker room policy to tell us more about the lower court ruling and also more about the school district's policy how it works to address issues of students who may be questioning their gender school district adopted a very straightforward policy and basically said should use the restroom at their biological sex, but we will provide an accommodation on a case-by-case basis to a transgender student that's uncomfortable using the bathroom of their biological sex and so from the school's perspective it's a way to make sure that every student in the district including this transgender student has a safe place with her privacy and safety and dignity are respected. I think that was a great compromise for the school to adopt and it is one that the court found persuasive as well.

So the court issued a really solid ruling look at all of the federal law, particularly in title IX. Title IX is a law dating back about 40 years ago. It was originally enacted to prohibit sex discrimination. There was a lot of schools and colleges in particular that were denying women the ability to enroll in certain majors or they would put a quote on the number of women that could be enrolled in the school and Congress stepped in and said that's not okay. We want to make sure that men and women across our country are given equal opportunities so they pass this law banning sex discrimination. What happened though is that the Department of Education under the Obama administration is reinterpreted that and said well we've defined sex not just be male and female, but also include gender identity and sexual orientation. If you tell a transgender person that they can't use the restroom of the gender with which they identify. That's a violation of title IX in your risk of losing all of the federal fines that come to school under title IX.

Another program so the District Court looked at that and said no title IX is very clear. Everyone knows it was mean to inhibit sex discrimination not have anything to do with gender identity or any any other types of protection so therefore school you win.

Title IX is very clear allow schools have separate facilities on the basis sex and ruled in favor of the school and against this transgender student and now since that time.

Of course, ACLU has appealed the lower court ruling to the Fourth Circuit Court of Appeals, which has jurisdiction over a number of states including North Carolina met in your opinion, how significant could the outcome of this case be not only for the state of Virginia but for the other states under the jurisdiction of the Fourth Circuit including North Carolina and how could this ruling potentially impact the ability of local school districts to set their own restroom and locker room policies. This is to be a very significant case both in Virginia in the 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 and whatnot. This is the first court case at the Court of Appeals to really address this issue of bathroom access under title IX, and so the court's decision on this in and to be argued on January 27 is really going to set a tone up our schools required to allow transgender students use whatever bathroom they want or common sense going to reign supreme is title IX going to be respected in our schools going to retain the authority to impose these commonsense rules when it comes to bathroom access. So every school in Virginia time and throughout the Fourth Circuit I think is going to be directly influenced in and given some clear direction based on the outcome of what the Fourth Circuit but it's very important for listeners understand the outcome of this case, although it is in another state could have a significant impact as you said not only on North Carolina and other states within the Fourth Circuit but across the country setting a legal precedent depending upon the manner in which the court rules. Now, as we mentioned earlier, the Obama administration has actually gotten involved with ACLU in this case, what role has the president's administration played in this case and why are they even involved in attacking the school district policy. They are really the driving force behind this case and this issue in our country the Department of Education a little over a year ago issued a letter and that's all it is.

It's just a letter no legal precedent. No binding effect of law but a letter saying we reinterpret title IX to ban sex and we defined sex discrimination to include gender identity and sexual orientation. And so it's going to schools across the country same you better allow transgender students use whatever restroom they want to work in a strip away your federal fines and where can I find you in violation of title IX, and so it is really the fuel that is driving this case in Virginia and other situations like across the country and the administration was very clear, they filed a brief with the court just up a few weeks ago. In fact, saying we think title IX requires schools to allow gender-neutral bathrooms.

We think title IX requires the student to be allowed to use the mall restrooms.

Despite her biology and so they are taking a very strong position on this and basically placing schools in a difficult position of either losing much needed federal funding or adopting policies that fundamentally violate a student's rights to privacy, so the schools are placed in this difficult position, but were encouraged to see a district like Gloucester taking a stand and thing hey administration, we have the control here.

We have a duty to protect the privacy of our students and we've adopted a commonsense policy that does that muscle force option would be that if this case went in the other direction that not only would female students who identified as male be able to use the male bathrooms with male students who identify as female or suggest that they do would be able to use female bathrooms and so the implications are enormous and, as we have seen with such orientation and gender identity, gender expression, those identifying factors are based on that own individual's personal perception of themselves at any given time and could change from day to day from moment to moment. And so it really is subjecting the school to a subjective self evaluation by any student, at any given time. Absolutely it is that we can just imagine that the scenarios where this pops up when that you got a guy shows up at school throws on a wig and address says I'm now a girl I want to use the girls restrooms in the girls locker room. This actually happened in Hillsboro, Missouri that exact back scenario. Fortunately the school there came to common sense and are taking steps to stop it, but you can imagine other situations where I guy wins is a coveted spot on a girls softball team and some girl now is denied. A scholarship is denied athletic opportunities.

All because some guy now claims he is a girl yes situations work with older students, 16, 17-year-old going to elementary schools and tutoring. There and having the same bathrooms and and intimate facilities that they're gonna be using in all of these would be required if you adopt the government's position on all of this, which is to say that a transgender person can use whatever bathroom locker room facility. They want to. Based upon their gender identity is a dangerous world that were opening up and one that we haven't fully found out the consequences and that's why it's perfectly reasonable for these parents to be standing up and saying wait a sec, are we sure this is the road we want to go down. Are we sure were comfortable with creating an atmosphere like this for our kids and again were not labeling transgender students are people with sexual predators, not at all, but when you mix boys and girls in private situations you're creating a recipe for unfortunate things to happen and that's all were saying is let's take a step back and consider those before we adopt this policy will not North Carolina Gov., Cory recently signed onto an amicus brief friend of the court brief that was followed by believing Atty. Gen. of South Carolina supporting the schools district policy and the governor did that after requesting that North Carolina Atty. Gen. Roy Cooper sought old and the Atty. Gen. of North Carolina refused to do so and so the governor felt it important that North Carolina be represented and so he sought all to the front of the court brief allots defending freedom also submitted a friend of the 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. Our focus is on the privacy issue, we submitted a brief on behalf of parent students and community members in Gloucester. The people directly impacted by this policy. What we raised is what courts across the country of have concluded that there is a fundamental right of privacy cannot be viewed and closed or in similar circumstances by members of the opposite sex.

One of the cases it does arises out of his situations involving prisoners.

So you got these male prisoners been convicted of a crime and are in prison and they filed a court suit against the prisons because there was female guards patrolling near the restrooms and shower areas, and the prisoner said look we may have given up a lot of our rights when we got sent to prison. We haven't given up our fundamental right to privacy in the courts agreed and they said yeah prisoners you're right that gotta be reassigned to some other part of the prison. So if these male prisoners have a fundamental right of privacy cannot be viewed changing or showering by members of the opposite sex. How much more so to the students in Gloucester and across the country have that same constitutional right. That's the basis of our argument that there is a clear right here and again were not saying that the transgender student should be afforded a safe place. They should, but it shouldn't come at the cost of violating the rights of privacy of the students in Gloucester and across the country will not we are almost out of time for today but before we close working our listeners go to learn more about allots defending freedom in this case they should business it ADF's work reliance defending freedom ADF legal.org they can learn more about this case but importantly if their school is facing this and if their school is considering a policy we want them to contact us. We want to send a letter and informational materials to the school and we stand by what we say because of the school will adopt our policy, we may be able to represent that school free of charge if they get sued by the ACLU, or transgender student or something like that because we think every school should be able to defend our policy take a firm stand for dignity for privacy and for the safety of every student under its care. And we certainly want to encourage parents to not only visit your website and and avail themselves of that information but also to keep their eyes and ears very open and be aware of what's taken place in the school districts in their areas of the state so that if something like this comes up will be aware of it and then with the help of ADF will know how to better respond to that. And with that I want to thank you Matt Sharp for joining us as we on family policy matters and for the great work that you're doing allots defending freedom, working to defend just that our freedoms are across this nation were so grateful for you and for all that ADF does. Thank you so much for having us family policy matters. Information and analysis, future of the North Carolina family policy Council join us weekly for discussion on policy issues affecting the family. If you have questions or comments, please contact 919-807-0800 or visit our website and see family.org