Transgender rights trump privacy rights in public schools

Oregon public school students heading back to class this fall should be prepared to share restrooms, locker rooms, and showers with students of the opposite sex, courtesy of a federal court ruling handed down last week. And students in Pennsylvania, Delaware, and New Jersey could face a similar situation given a newly revised ruling from the 3rd U.S. Circuit Court of Appeals.

Students and parents in Oregon and Pennsylvania sued their respective schools over policies that allow transgender students to use the private facilities that affirm their gender identity. The cases illustrate how judges consistently affirm two key arguments of transgender advocates: First, the students’ right to bodily privacy is outweighed by the need to protect transgender students from “discrimination,” and second, Title IX, the federal prohibition against sex discrimination in publicly funded schools, requires schools to allow students to use the private facilities that correspond with their gender identity.

“There are certain positions being accepted as fact without any underlying basis for it,” said attorney Herb Grey, who represents the plaintiffs suing Oregon’s Dallas School District No. 2.

In the Pennsylvania case, Doe v. Boyertown Area School District, a three-judge panel of the 3rd Circuit in May hastily asserted a gender dysphoric student’s so-called right to use the sex-segregated facility of her choice.

In his ruling dismissing the Oregon students’ privacy pleas, U.S. District Judge Marco Hernandez last Tuesday accepted and repeatedly cited the 3rd Circuit’s interpretation of Title IX, that the law “prohibits discrimination against transgender students in school facilities.” He added that students do not “have a fundamental right not to share school facilities with transgender students whose assigned sex is different than theirs.”

As with the cases in Pennsylvania, Ohio, and Illinois, Hernandez disregarded Oregon students’ concerns that they might see or be seen by students of the opposite sex in various stages of undress or using the restroom. Citing Doe v. Boyertown, Hernandez said the “plight of transgender students who are not allowed to use facilities consistent with their gender identity” outweigh all other student privacy concerns.

On Thursday, the 3rd Circuit revised its ruling in Doe v. Boyertown but did not substantially alter its Title IX interpretation. However, four judges issued a dissent, written by Judge Kent Jordan, that said the court went beyond what was necessary. Asserting that Title IX prohibits a policy requiring students to use facilities designated for their biological sex could hamper school administrators’ efforts to “thoughtfully address how best to handle the issue,” he said.

“To say or imply that there is only one legally defensible policy decision that a school district can reach is not only unsupported; it is unsupportable,” Jordan added.

He also noted the disparaging tone of the 3rd Circuit’s majority opinion. It minimizes students’ privacy concerns and seems to “treat them as a thin cover for bigotry,” Jordan wrote, despite the majority’s assurances to the contrary.

The students and parents in Oregon and Pennsylvania have not announced whether they will appeal. Lawsuits involving the definition of the word sex in Title VII employment law have already been appealed to the U.S. Supreme Court. As in the school transgender policy cases, lower courts have sided with LGBT activists. Gary McCaleb, an attorney with Alliance Defending Freedom, told me that a Supreme Court decision in Title VII cases will have a bearing on the Title IX school cases.

The debate will continue in Oregon: The mother of a 15-year-old Sutherlin School District student has filed a lawsuit on behalf of her son challenging their school’s transgender student policy.

Task force reaction highlights country’s division over religious liberty

Responses to Monday’s announcement that the Department of Justice is creating a Religious Liberty Task Force demonstrate this country’s cultural and spiritual divide over First Amendment freedoms.

At a summit hosted by the DOJ, Attorney General Jeff Sessions said the task force will help the department implement guidance issued last year and ensure DOJ “employees know their duties to accommodate people of faith.”

Speakers at the summit featured Christians, Jews, Muslims, and Sikhs who recounted stories of discrimination, including Christian baker Jack Phillips, a rabbi who faced opposition to building a synagogue, and a Sikh lawyer who was told he had to remove his turban to receive a job offer.

In response, the American Civil Liberties Union, which leads the effort to shut down Christian foster care and adoption agencies that refuse to place children with same-sex couples, warned via Twitter: “Reminder: Religious freedom protects our right to our beliefs, not a right to harm others. The Department of Justice has no business licensing discrimination against LGBT people, women, and religious minorities.”

“If the ACLU opposes vigorously upholding the First Amendment, that says a lot more about them than it does about the task force,” Montse Alvarado, vice president of Becket, told me. The legal advocacy organization represents the Jewish panelist, Rabbi Ruvi New, whose congregation has struggled for 10 years against anti-Semitism in Boca Raton, Fla.

In a concluding panel, Emilie Kao, an attorney at The Heritage Foundation, warned that America must avoid “the path of repressive regimes” and guard against sexual revolutionaries’ hostility toward non-conformists.

“In recent years, [religious liberty] has become a highly politicized phrase,” said DOJ media affairs specialists Kerri Kupec. “I have even seen the phrase ‘religious freedom’ housed in scare quotes, as if it is not a real thing, or a bad thing, which is tragic. True religious freedom is a beautiful thing. Religious freedom is our collective identity.” —B.P.

What we choose it to mean

Michigan’s Civil Rights Commission last week declared, in defiance of the state’s attorney general, it has the authority to interpret state law to include sexual orientation and gender identity as protected classes.

The commission had already decided on May 21 that, in the Elliot-Larsen Civil Rights Act, the word “sex” was “ambiguous.” The traditional interpretation was itself discriminatory and left the commission without the authority to accept complaints of discrimination based on sexual orientation and gender identity, it said.

At the behest of Republican lawmakers, Attorney General Bill Schuette issued an opinion refuting the commission’s “interpretive statement.” Michigan’s constitution authorizes the commission to enforce the law, not create it, he said.

At its meeting on July 23, the commission doubled down, directing the state’s Department of Civil Rights to continue investigating gender-based discrimination complaints. Likely emboldened by a recent decision by the 6th U.S. Circuit Court of Appeals that the word “sex” in Title XII, the federal employment nondiscrimination law, includes sexual orientation and gender identity, the commission declared it is not bound by the attorney general’s opinion and will see him in court.

The move is yet another demonstration of unelected officials advancing LGBT rights by administrative fiat instead of the legislative process, advances that the Michigan legislature has repeatedly rejected, said Dave Kallman, an attorney with the Great Lakes Justice Center. —B.P.

High school flunks free-speech test

First Amendment liberties were put to the test at Liberty High School near Portland, Ore., last spring, and administrators at the school just learned that censorship comes with a price.

In January, an assistant principal told senior Addison Barnes to cover his T-shirt because it displayed a message that supposedly would disrupt the school: “Donald Trump Border Wall Construction Co. The Wall just got 10 feet taller.”

Barnes initially complied but then, perhaps recalling his civics lessons on free speech and censorship, uncovered the message. Called back to the office for an ultimatum—cover it up or go home—Barnes went home.

He filed a lawsuit against the school’s principal, Greg Timmons, and the Hillsboro School District in U.S. District Court. A judge in May issued a temporary restraining order barring the school from banning the shirt. Instead of continuing the lesson on speech suppression, the school district agreed last Tuesday to pay Barnes $25,000 to cover his legal fees and to issue a written apology from Timmons. —B.P.