A crucial component surrounding recent discussions on gender identity, gender expression and student access to restrooms and locker rooms has been missed: the constitutional right to bodily privacy.

Courts have consistently ruled that people have a reasonable constitutional right to bodily privacy – the right to not be viewed unclothed or partially clothed by someone of the opposite sex. This right has been upheld for students in school, employees at work and even prisoners in jail.

Recently, a group of parents and students filed a lawsuit against a Minnesota school district, arguing that allowing a male who identifies as a female to use the girls’ locker room and restrooms is a violation of privacy.

51 families in Illinois have also filed a lawsuit against their school district to prohibit a policy from going into effect that would allow some students to use the restrooms and locker rooms of the opposite sex.

As the Ninth Circuit Court recognized in Michenfelder v. Sumner, “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.” [1]

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Forcing students into vulnerable interactions with opposite-sex students in secluded restrooms and locker-rooms violates this basic right. The 8th Circuit Court, which covers Nebraska, recognized this in Sommers v. Budget Mktg., Inc., [2] finding that a transgender individual’s use of a women’s restroom threatened female employees’ privacy interests. Similarly, in Brooks v. ACF Indus., Inc., [3] the court ruled that a female would violate a male employee’s privacy rights by entering a men’s restroom while the male was using it.

Further yet, courts have even upheld prisoners’ right to use restrooms and changing areas without regular exposure to viewers of the opposite sex. In Arey v. Robinson, a court found that a prison violated prisoners’ right to bodily privacy by forcing them to use dormitory and bathroom facilities regularly viewable by guards of the opposite sex [4]; and in Miles v. Bell, a district court recognized that courts across the country have found a constitutional violation where “guards regularly watch inmates of the opposite sex who are engaged in personal activities, such as undressing, using toilet facilities or showering.”[5]

Obviously, students have a greater right to bodily privacy than prisoners. School districts must ensure that students entrusted to their care may use restrooms and locker rooms without exposure to the opposite sex.   

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Schools have a responsibility to prevent students from accessing opposite-sex restrooms and locker rooms to avoid violating student’s basic constitutional right of bodily privacy. Failure to do so leaves school districts more liable, not less, to tort liability for violating students rights. 

Schools can accommodate the unique needs of students without violating other students right to bodily privacy.

We advise school districts to continue to handle these matters as they arise individually by utilizing a policy which allows schools to accommodate students with unique privacy needs, while also protecting other students’ privacy and free exercise rights.

[1] (Michenfelder v. Sumner, 860 F.2d 328, 333, 9th Cir. 1988)

[2] (667 F.2d 748, 750, 8th Cir. 1982)

[3] (537 F. Supp. 1122, 1132, S.D. W. Va. 1982)

[4] Arey v. Robinson, 819 F. Supp. 478, 487 (D. Md. 1992)

[5] 621 F. Supp. 51, 67 (D. Conn. 1985)

Nate Grasz

Nate Grasz

Policy Director
Nate is the Policy Director at Nebraska Family Alliance and host of the Capitol Report program.