Responding to a parent’s complaint that Nashville Public Schools is unofficially letting transgender students use the restrooms and locker room of their choice, a conservative legal group is warning other Tennessee school districts they could be sued for following Nashville’s lead.
The Alliance Defending Freedom said it sent letters to every school district in the state, warning that they may have been fed “misinformation” that they “must adopt policies” letting transgender students use gendered facilities that do not correspond with their biological sex.
Not only do Title IX’s implementing regulations specifically let schools “provide separate toilet, locker room, and shower facilities on the basis of sex,” but no school has ever lost federal funding for alleged noncompliance with Title IX, the letters state. The alliance cites two federal court decisions from last year declining to extend Title IX to gender identity when it comes to gendered facilities in both a college and high school.
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The group alluded to congressional concern about the Department of Education’s use of “guidance” letters, saying one such April 2014 document on gender identity “does not change” the interpretation of Title IX:
First, the guidance document itself does not mention access to restrooms. More importantly, it would not matter even if it had mentioned restrooms. Federal regulations make clear that significant guidance documents issued by executive agencies are “non-binding [in] nature” and should not be “improperly treated as legally binding requirements.” … In other words, the Department of Education’s guidance letter cannot unilaterally change Title IX’s implementing regulations, which allow schools to have sex-specific facilities.
On the other hand, there’s a long line of court decisions affirming that males and females have a “fundamental right to bodily privacy” in their own gendered facilities, and hence can sue the school district if it violates their rights, the letters state. “Many state constitutions” protect similar rights for religious students whose faith prohibits sharing a facility with the opposite biological sex:
Parents also have the fundamental right to control their children’s education and upbringing, including the extent of their children’s knowledge of the difference between the sexes. …
These sensitive matters should be disclosed at home when parents deem appropriate, not ad-hoc in a school restroom. Respecting such parental choices requires school districts to prohibit students from accessing restrooms and locker rooms dedicated to the opposite sex.
Read the alliance’s release and its letters to Nashville and other state school districts.
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