WASHINGTON – Shortly before leaving office, President Obama ordered public schools to allow students who perceive themselves to be of the opposite sex to use the showers and rest rooms of their choice or risk losing federal funding.
While President Trump has reversed the executive order, the transgender policy continues in some schools.
Now a top-flight legal organization has written to schools in Minnesota warning that their accommodations for transgendered students violate the constitutionally protected rights of both parents and students.
In July, an advisory council for the Minnesota Department of Education adopted a "Toolkit for Ensuring Safe and Supportive Schools for Transgender and Gender Nonconforming Students," which mandates the "segregation" of students who are uncomfortable with sharing private rooms with the opposite biological sex.
"Privacy objections raised by a student in interacting with a transgender or gender nonconforming student may be addressed by segregating the student raising the objection provided the action of the school officials does not result in stigmatizing the transgender or gender nonconforming student," Minnesota states in the document.
The "toolkit" asks schools to provide for both "shared" and "gender neutral" restrooms, locker rooms and hotel rooms for out-of-town travel to accommodate their transgender students.
It also advises officials running public schools to cater to gender-ambiguous students by referring to students as "scholars" rather than girls or boys, and the prom king and queen as "prom ambassadors."
"Schools should not assume a student's name or pronoun," the toolkit says.
But the Alliance Defending Freedom and the North Star Law & Policy Center have written directly to schools. ADF, an international legal organization that advocates for the constitutional rights of students, and the NSLPC, a group of Minnesota attorneys, are warning that the guidance is a "legal liability."
The toolkit's recommendation, the letter states, violates the "right to bodily privacy," the First Amendment's right to the free exercise of religion, "parent's right to direct their children's upbringing and education" and "discriminates against female athletes."
"Neither the Toolkit, Title IX, nor any federal or state law, requires schools to allow students to use opposite sex restrooms, locker rooms, showers and overnight accommodations," the letter states. "Students have the right to bodily privacy. Parents have the right to control their children's education and upbringing, including their knowledge of the differences between sexes."
The "drafters of the Toolkit rely on the federal Department of Education's May 16, 2016, Dear Colleague Letter as guidance and legal support for their claims," the letter states, "that guidance has been withdrawn and the federal government no longer relies on the position expressed. Thus it is clear that Title IX prohibits discrimination based only on the binary characteristic of sex and does not expand to ‘gender identity,' ‘gender expression' or a ‘gender spectrum.'"
Under Title IX, schools can "maintain separate living facilities for the different sexes," and Title IX's implementing regulations state that schools may provide separate toilet, locker room and shower facilities on the basis of sex.
Biological males who call themselves females do not have the right to access female facilities according to Title IX, ADF contends.
"Doing so raises legitimate privacy concerns for females. There is no standing federal case law allowing an interpretation of Title IX to include gender identity as a protected class," the letter states.
"Students have a constitutional right to bodily privacy. As one court explained, females ‘using a women's restroom expect a certain degree of privacy from ... members of the opposite sex,'" the letter states. "Similarly, teenagers are 'embarrassed' ... when a member of the opposite sex intrudes upon them in the lavatory. Allowing opposite-sex persons to view adolescents in intimate situations like showering risks their ‘permanent emotional impairment' under the ‘guise of equality.'"
Subjecting religious students to gender-neutral lavatories infringes on the freedom of religion and infringes on parent's right to direct their children's upbringing, the groups warn.
"Faith-based principles of modesty preclude many religious students from sharing intimate facilities with members of the opposite sex," reads the letter. "Interaction between males and females in showers, locker rooms, restrooms and overnight facilities will necessarily result in students being exposed to disrobing or nude members of the opposite sex, contrary to the well-established rights of parents to direct the education of their children.
"Such exposure to anatomical differences between the sexes should not be forced upon students. These sensitive matters should be disclosed at home when parents deem it appropriate, not forced on kids in school facilities."
ADF currently is fighting a court battle over the transgender bathroom controversy in Pennsylvania's Boyertown Area School district after a boy turned around in a male locker room and saw a girl who identifies as a boy changing clothes.
School officials "secretly opened" their sex-specific restrooms and locker rooms to students of the opposite sex without any notice to students or their parents, the lawsuit charges.
The male student who objected to undressing in front of a transgender students was directed by the school to make undressing with students of the opposite sex "natural" or shower somewhere else.
According to a Rasmussen survey released in May, 51 percent of American adults oppose allowing transgender students to use the bathrooms of the opposite biological sex, 33 percent support this decision and 16 percent are undecided.