John Rustin | December 22, 2015 | SHARE: 
This week, NC Family president John Rustin talks with Matt Sharp, legal counsel with Alliance Defending Freedom (ADF), about an important case in Virginia that is currently before the Fourth Circuit Court of Appeals, which could have a significant impact on the privacy, safety and health of students in public schools in a number of states, including North Carolina.
INTRODUCTION: Matt Sharp is Legal Counsel with Alliance Defending Freedom, where he plays a key role on the Freedom of Conscience Team. Since joining ADF in 2010, Matt has worked on a number of important cases advancing religious freedom particularly for elementary students in school.
Matt is with us to discuss an important case out of the state of Virginia that is currently before the United States Court of Appeals for the Fourth Circuit, which could have a significant impact on the privacy, safety and health of students in public schools in a number of states, including North Carolina. We consider the outcome of this case to be very important, and apparently others do as well, as North Carolina Governor Pat McCrory recently signed his name to a friend of the court brief that’s been filed in this case.
JOHN RUSTIN: Matt, for the benefit of our listeners, tell us about this case, which is G.G. vs. Gloucester County School Board, and the Virginia school district whose bathroom policy is being challenged by not only the ACLU but also the Obama administration.
MATT SHARP: This is the scenario that we’re seeing pop up in school districts across the country. G.G. is a female student in the Gloucester school district in Virginia, and was starting to identify as a male, dressed like a male, go by a male’s name, and eventually started demanding to be allowed to use the male restrooms and locker rooms. Initially, the school district said, “Yes,” and the Superintendent said, “Yes, we’re going to allow you to do that.” And this happened for about six to seven weeks. Well, a lot of parents started learning about this, and students started learning about this and were concerned that their right to privacy was being violated. There hadn’t been any consultations, [no] information had been given to parents that this girl was now going to be in the boys’ restroom and sharing the facilities with their boys. And so a lot of the parents became concerned and went to the school board, and said, “Look, we’re not comfortable with all of this. We’re not here to attack G.G. or anything like that, but you’ve got to take into account the privacy rights of our children, and to make sure that those are being respected.” We were contacted by parents at ADF, and we sent a letter to the school explaining why the law protects a students’ right to privacy, and why a better course of action is to allow this transgender student to use a single stall restroom, a place where her privacy can be protected, but protecting the rights of everyone else by maintaining specific and distinct facilities for boys and girls. Fortunately, the school district agreed, and the board reversed course, adopted a good policy, and that’s what ultimately led to this student suing the school district with the assistance of the ACLU, saying you’re violating Title IX and my constitutional right by not allowing me, a girl, to use the guys’ bathroom.
JOHN RUSTIN: Interesting, thank you for that background. As I understand it, a federal district court ruled in favor of the Virginia school district’s restroom and locker room policy. Tell us more about that lower court ruling, and also more about the school district’s policy, how it works to address the issues of students who may be questioning their gender?
MATT SHARP: The school district adopted a very straightforward policy, and it basically said: “Students should use the restroom of their biological sex, but we will provide an accommodation on a case by case basis to a transgender student that’s uncomfortable using the bathrooms of their biological sex.” And so from the school’s perspective, it’s a way to make sure that every student in the district, including this transgender student, has a safe place where their privacy, safety and dignity are respected. And I think that was a great compromise for the school to adopt. And it is one that the court found persuasive as well, and so the court issued a really solid ruling, looked at all the federal law, and particularly Title IX. Title IX is a law dating back about 40 years ago. It was originally enacted to prohibit sex discrimination. There was a lot of schools and colleges in particular that were denying women the ability to enroll in certain majors, or they would put a quota on the number of women who could be enrolled in the school. And Congress stepped in and said, “That’s not OK. We want to make sure that men and women across our country are given equal opportunities,” so they passed this law banning sex discrimination. What happened, though, is that the Department of Education under the Obama Administration has re-interpreted that and said, “Well, we’ve define sex to not just be male and female, but to also include gender identity and sexual orientation. So, if you tell a transgender person that they cannot use the restroom of the gender with which they identify, that’s a violation of Title IX, and you’re at risk of losing all of these federal funds that come to schools under Title IX and other programs.” So the district court looked at that and said, “No, Title IX is very clear, everyone knows it was meant to prohibit sex discrimination not to have anything to do with gender identity or any other types of protection, so therefore school you win.” Title IX is very clear, it allows schools to have separate facilities on the basis of sex, and so the court ruled in favor of the school and against this transgender student.
JOHN RUSTIN: Since that time, the ACLU has appealed the lower court ruling to the Fourth Circuit Court of Appeals, which has jurisdiction over a number of states, including North Carolina. Matt, in your opinion how significant could the outcome of this case be, not only for the state of Virginia, but for the other states under the jurisdiction of the Fourth District, including North Carolina, and how could this ruling potentially impact the ability of local school districts to set their own restroom and locker room policies?
MATT SHARP: This is going to be a very significant case, both in Virginia and that region, but I think even across the country. While there have been lots of courts to look at this issue and to say that Title IX and other laws do not specifically address transgender students, this is the first court case at the Court of Appeals to really address this bathroom access under Title IX. And so the court’s decision on this, and it’s going to be argued on January 27, is really going to set a tone [to help determine]: are schools required to allow transgender students to use whatever bathroom they want, or is common sense going to rein supreme, is Title IX going to be respected, and are schools going to retain the authority to impose these common sense rules when it comes to bathroom access? So, every school in Virginia and throughout the Fourth Circuit I think is going to be directly influenced and given some clear direction, based on the outcome of what the Fourth Circuit decides.
JOHN RUSTIN: It’s very important for our listeners to understand that the outcome of this case, although it is in another state, could have a significant impact, as you said, not only in North Carolina and other states within the Fourth Circuit, but across the country, setting a legal precedent, depending upon the manner in which the court rules. Now, as we mentioned earlier, the Obama administration has actually gotten involved with the ACLU in this case. What role has the President’s administration played in this case, and why are they involved in attacking this school district’s policy?
MATT SHARP: They are really the driving force behind this case and this issue in our country. The Department of Education, a little over a year ago, issued a letter, and that’s all it is, it’s just a letter, no legal precedent, no binding effective law, but a letter saying, “We re-interpret Title IX to ban sex discrimination,” and “We define sex discrimination to include gender identity and sexual orientation.” And so it’s going to schools across the country saying, “You better allow a transgender student to use whatever restroom they want to, or we’re going to strip away your federal funds, and we’re going to find you in violation of Title IX.” And so it’s really the fuel that is driving this case in Virginia and other situations like it across the country. The Administration was very clear, they filed a brief with the court, just a few weeks ago in fact, saying, “We think Title IX requires schools to allow gender-neutral bathrooms. We think Title IX requires this student to be allowed to use the male restrooms, despite her biology.” And so they’re taking a very strong position on this and basically placing schools in a difficult position of either losing much-needed federal funding, or adopting policies that fundamentally violate a student’s right to privacy. But we’re encouraged to see a district like Gloucester taking a stand and saying, “Hey Administration, we have the control here, we have a duty to protect the privacy of our students, and we’ve adopted a common sense policy that does that.”
JOHN RUSTIN: And my full assumption would be that if this case went in the other direction, not only would female students who identify as male be able to use the male bathrooms, but male students who identify as female, or suggest that they do, would be able to use female bathrooms. And so the implications are enormous, and as we have seen with sexual orientation, gender identity, and gender expression, those identifying factors are based on that own individual’s personal perception of themselves at any given time, and could change from day to day. And so it really is subjecting the school to a subjective self-evaluation by any student at any given time.
MATT SHARP: Absolutely it is. We can just imagine that the scenarios where this pops up: one day you got a guy shows up at school, throws on a wig and a dress and says, “I’m now a girl, and I want to use the girls’ restrooms and the girls’ locker rooms.” This actually happened in Hillsboro, Missouri, that exact scenario. Fortunately, the school there came to its [senses], and they’re taking steps to stop it. But you can imagine other situations where a guy wins a coveted spot on a girls softball team, and some girl now is denied a scholarship, all because some guy now claims he’s a girl. You have situations with older students, 16, 17-year-olds, going to elementary schools and tutoring there and having the same bathrooms that they’re going to be using. And all of these would be required, if you adopt the government’s position on all of this, which is to say that a transgender person can use whatever bathroom, locker room facility they want to based upon their gender identity. It is a dangerous world that we’re opening up and one that we haven’t fully thought out the consequences. And that’s why it’s perfectly reasonable for these parents to be standing up and saying, “Wait a sec, are we sure this is the road we want to go down? Are we sure we’re comfortable with creating an atmosphere like this for our kids.” And again, we’re not labeling transgender students or people as sexual predators, not at all. But when you mix boys and girls in private situations, you’re creating a recipe for unfortunate things to happen. And that’s all we’re saying is let’s take a step back, and consider [these problems] before we adopt these policies.
JOHN RUSTIN: North Carolina’s governor Pat McCrory recently signed onto a amicus brief, or a friend of the court brief, that was filed by the Attorney General of South Carolina, supporting the school district’s policy. And the Governor did that after requesting that North Carolina Attorney General Roy Cooper sign on and the Attorney General of North Carolina refused to do so and so the Governor felt it important that North Carolina be represented, and so he signed on to the friend of the court brief. Alliance Defending Freedom also submitted a friend-of-court brief in the case as well. What is ADF arguing in its brief in terms of why the Gloucester County school district’s policy should be upheld?
MATT SHARP: Our focus is on the privacy issue. We submitted a brief on behalf of parents, students, and community members in Gloucester, the people directly impacted by this policy. And what we raised is what courts across the country have concluded, that there is a fundamental right of privacy to not be viewed unclothed or in similar circumstances by members of the opposite sex. One of the cases that those arise out of is a situation involving prisoners. And so you’ve got these male prisoners who’ve been convicted of a crime and are in prison, and they filed a court suit against the prison because there were female guards patrolling near the restrooms and shower areas, and these prisoner said, “Look, we may have given up lot of our rights when we got sent to prison, but we haven’t given up our fundamental right to privacy.” And the courts agreed, and they said, “Yes prisoners, you’re right, [the female guards] have to be reassigned to some other part of the prison.” So, if these male prisoners have a fundamental right of privacy and to not be viewed changing or showering by members of the opposite sex, how much more so do these students in Gloucester and across the country, have that same constitutional right? And that’s the basis of our argument, that there is a clear right here, and again we’re not saying that the transgender student shouldn’t be afforded a safe place, they should, but it shouldn’t come at the cost of violating the rights of privacy of these students in Gloucester and across the country.
JOHN RUSTIN: Matt, we are almost out of time for today, but before we close where can our listeners go learn more about Alliance Defending Freedom and this case?
MATT SHARP: They should visit us at ADF, which is short for Alliance Defending Freedom, so, www.adflegal.org. They can learn more about this case, but importantly if their school is facing this and if their school is considering a policy, we want them to contact us, and we want to send a letter and informational materials to the school. And we stand by what we say because if a school will adopt our policy, we may be able to represent that school free of charge if they get sued by the ACLU or a transgender student or something like that, because we think every school should be able to defend our policy, take a firm stand for dignity, for privacy, and for the safety of every student under its care.
JOHN RUSTIN: And we certainly want to encourage parents to not only visit your website and avail themselves of that information, but also to keep their eyes and ears open and be aware of what’s taking place in the schools districts in their areas of the state, so that if something like this comes up, they’ll be aware of it, and then with the help of ADF will know better how to respond to that.
And with that I want to thank you Matt Sharp for joining us this week on Family Policy Matters and for the great work that you’re doing at Alliance Defending Freedom, working to defend our freedoms across this nation. We’re so grateful for you and ADF.
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