Attorneys with Alliance Defending Freedom sent a letter to TUSD on Thursday asking it to reverse its new policy of allowing children to use bathrooms of the opposite sex. In the letter, ADF offers to defend the Tucson Unified School District free of charge if it adopts the ADF-recommended policy and then faces any legal challenge over it in court.
This past March, the TUSD Governing Board passed a vague policy which provides that students can use whichever bathroom they feel they identified with in terms of a gender. The Board’s move was solely political, with little thought as to the welfare of all children, according to many educators and families in the District.
The Board’s action was in response to concerns about a transgendered student using the boys bathroom Anna Henry School. The issue caused a rift in the once tranquil school community.
At the time, parents contacted the District’s administration with their concerns about the use of the bathroom and an incident in which they felt a male student was the victim of indecent exposure. The administration ignored those parents until Board member Michael Hicks expressed his concern for the victimized student and questioned if the District had a bathroom policy in place.
In response to the “cutting edge” policy, ADF attorneys wrote a letter to the District, providing a suggested policy that addresses concerns about discrimination without allowing the sharing of bathrooms.
The ADF letter explains that, contrary to the district’s stated reason for enacting its new policy, no law requires public schools to allow boys into girls’ restrooms or girls into boys’ restrooms. In fact, the district could be exposing itself to legal liability for placing children in potentially unsafe conditions.
“Protecting young children from inappropriate exposure to the opposite sex is not only perfectly legal, it’s a school district’s duty,” said ADF Legal Counsel Jonathan Scruggs. “Letting boys into girls’ bathrooms is an invasion of privacy and a threat to children’s safety. The school district is actually subjecting itself to potential liability if any of these children encounter any harm.”
“Instead of protecting children, the school district is needlessly adopting a policy that invites harm and violations of student privacy,” added ADF Senior Legal Counsel Jeremy Tedesco. “The first duty of school district officials is to protect the children who attend school.”
Governing Board member Michael Hicks said, “I appreciate the generous offer of the very well-respected attorneys with Alliance Defending Freedom. I agree we must protect our children. I hope that the District’s administration will consider the attorneys’ advice and offer.”
Superintendent H.T. Sanchez did not respond to a request for comments.
TUSD recently amended its Non-Discrimination Policy to include the terms “gender identity and expression” upon legal advice that federal laws like Title IX require it and require the district to allow students to use opposite-sex bathrooms and changing areas. The ADF letter explains that, in fact, no law requires TUSD to open bathrooms and changing areas to opposite-sex students and that providing such access endangers children and violates the rights of both students and parents.
The letter cites pertinent legal precedent, including a 2009 U.S. Court of Appeals for the 9th Circuit ruling that public schools can restrict restrooms to members of the same sex for safety reasons without violating Title IX.
“Based on such cases, TUSD does not have any legal duty to open changing areas to opposite-sex students as a means to prevent discrimination. There simply is no discrimination in protecting young children from inappropriate exposure to the opposite-sex…,” the ADF letter states. “Permitting students to use opposite-sex restrooms would seriously endanger student safety, undermine parental authority, and severely impair an environment conducive to learning. These dangers are so clear-cut that a school district allowing such activity would clearly subject itself–and its teachers–to tort liability. We therefore suggest that TUSD reverse its decision and prohibit students from using opposite-sex changing areas.”
ADF proposed policy:
In recognition of student physical privacy rights and the need to ensure student safety and maintain school discipline, this Policy is enacted to advise school site staff and administration regarding their duties in relation to student use of restrooms, locker rooms, showers, and other school facilities where students may be in a state of undress in the presence of other students.
“Biological sex” means the biological condition of being male or female as determined at birth based on physical differences, or, when necessary, at the chromosomal level.
A. Use of School Facilities
Notwithstanding any other Board Policy, student restrooms, locker rooms, and showers that are designated for one biological sex shall only be used by members of that biological sex.
In any other school facilities or settings where a student may be in a state of undress in the presence of other students (i.e., changing costumes during school theatrical productions, etc.), school personnel shall provide separate, private areas designated for use by students based on their biological sex.
B. Accommodation of Biological Sex Non-Conforming Students
Students that exclusively and consistently assert at school that their gender is different from their biological sex shall be provided with the best available accommodation that meets their needs, but in no event shall that be access to the school restroom, locker room, or shower of the opposite biological sex. Such accommodations may include, but are not limited to: access to a single-stall bathroom; access to a uni-sex bathroom; or controlled use of a faculty bathroom, locker room, or shower.