Omaha Public School’s recent announcement that they are considering adding gender identity and gender expression to their nondiscrimination policy has raised several questions:
…
[wp-svg-icons icon=”play-3″ wrap=”i”] What do the Federal Guidelines released by President Obama mean for schools?
[wp-svg-icons icon=”play-3″ wrap=”i”] What do Title IX and Nebraska law actually require of schools?
[wp-svg-icons icon=”play-3″ wrap=”i”] How are the courts ruling on cases regarding gender identity and access to the opposite sex’s bathrooms and locker rooms?
3 FAQs About Schools, Nondiscrimination and Bathrooms
What do the Federal “guidelines” mean for schools?
In May of this year, the Obama administration attempted to redefine “sex” in Title IX to include “gender identity.” In short, this was an egregious overreach by the Federal Government. The guidelines are nonbinding and do not accurately represent Federal and State law or even what the courts have decided.
Pres. Obama’s attempt to bully every school in the nation into adopting this policy led 24 states, including Nebraska, to file a federal lawsuit.
A practical approach would be to wait and see how the federal courts rule on this issue before making a policy change.
This is what other school boards have done, such as Fairfax County School Board in Virginia, who recently announced that the district would hold off on implementing this controversial policy while waiting for the outcome of the legal challenges from the 24 states.
What do Title IX and Nebraska law actually require of schools?
Title IX was passed in 1972 with universal recognition that it was intended to ensure equal opportunities for biological females. The law even clarified that separate changing and bathroom facilities for women were obviously not discrimination.
In fact, the regulations implementing Title IX specifically allow schools to “provide separate toilet, locker room, and shower facilities on the basis of sex.” (34 C.F.R. § 106.33).
Title IX recognizes that there are privacy and safety concerns justifying separate bathrooms and locker rooms for men and women.
This is made abundantly clear under Nebraska law, where State Statute (79-2,124:) says, “The Nebraska Equal Opportunity in Education Act does not prohibit any educational institution from maintaining separate toilet facilities, locker rooms, or living facilities for the different sexes.”
What are the courts saying?
Both federal and state courts have almost uniformly rejected arguments suggesting that Title IX requires schools to give students access to opposite-sex restrooms and changing areas. Rather, these courts have found that schools have a responsibility to maintain separate facilities to protect student privacy in states of full or partial undress.
There is a constitutional right to bodily privacy—to not be viewed unclothed by those of the opposite sex. This right has been upheld for children at school, employees at work, and even convicted felons in prison.
In Michenfelder v. Sumner, the Ninth Circuit Court stated: “[s]hielding one’s unclothed figure from the view of strangers, particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.” [1]
Just last year, federal courts in Pennsylvania and Missouri rejected transgender students’ claims that Title IX required their schools to allow them to use opposite-sex restrooms. [2]
The U.S. Supreme Court has also now intervened for the first time on this issue, granting a Virginia school board permission to keep its bathrooms separated by biological sex and blocking a lower court ruling that would have allowed students to use the school restroom that fits their “gender identity.”
It’s not just students’ rights at stake, but parental rights as well. The U.S. Supreme Court has already confirmed that parents have the fundamental right to control their children’s education and upbringing, including the extent of their children’s knowledge and exposure to the differences between the sexes. The Constitution “protects the fundamental right of parents to make decisions concerning the care, custody and control of their children.” [3]
Conclusion
Neither President Obama’s guidelines, Nebraska state law, nor Title IX require schools to open bathrooms and locker rooms to the opposite sex. In fact, the courts have found the opposite: Student bodily privacy is a Constitutional right that schools have a responsibility to protect.
School districts have broad discretion to regulate the use of restrooms and similar facilities and to balance competing interests. Therefore, schools should craft policies that are both respectful of the privacy rights of all children and sensitive to the diverse needs of individual children.
[1] Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir. 1988).
[2] Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher Educ., 97 F. Supp. 3d 657, 661 W.D. Pa. 2015; R.M.A. v. Blue Springs R-IV Sch. Dist., 477 S.W.3d 185, 187 (Mo. Ct. App. 2015)
[3] See, e.g., Troxel v. Granville, 530 U.S. 57, 66 (2000).
Learn More
Nate Grasz