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The Judicial Assault on Public School Privacy Policies

The Judicial Assault on Public School Privacy Policies


Activist judges are continuing to rule against the rights of students, parents, and public school districts to determine their own bathroom and locker room privacy policies. In FRC’s latest Facebook Live event, Travis Weber, the director of FRC’s Center for Religious Liberty joins John Rustin, the President and Executive Director of the North Carolina Family Policy Council to discuss this important issue. Here is a summary of some of the key points made in this discussion:

  • The 7th Circuit Court’s recent decision in Kenosha Unified School District v. Whitaker was a loss of autonomy and ability of school districts and parents to set the policies they want for their students, particularly that of boys and girls using private facilities separately.
  • Since children are compelled by law to go to school, parents ought to have the right to help set policies with respect to privacy issues in bathrooms and locker rooms.
  • The Kenosha case is the latest example of why the federal judiciary often gets a bad name. It is a clear example of a judge who is unaccountable to the people imposing their own policy preference in law. The judge in the Kenosha case cited Title IX’s prohibition of sex discrimination as the reason why a student who identifies as transgender should be allowed to use the bathroom and other private facilities of their choice. Until very recently, Title IX has never been viewed as a means of forcing school districts to accommodate these claims.
  • In the Kenosha case, the school district was happy to accommodate the student who identified as transgender by offering them a separate private facility to use. As is often the case, however, this accommodation was viewed as unsatisfactory. Parties and individuals pushing the transgender bathroom agenda are often not trying to be reasonable—they instead demand that their proposed policies be made into law and be fully accepted by all.
  • Reasonable accommodations can be made to protect the privacy of students who identify as transgender without infringing upon the privacy rights of all the other students. The Kenosha school system has over 22,000 students, and yet the 7th Circuit Court inexplicably decided to throw out the privacy interests of 21,999 students on behalf of one student.
  • Cases like this are stark reminders of how important it is to have an administration that will appoint judges who faithfully read the text of the law and the Constitution and adhere to it without injecting their policy preferences.
  • FRC and the North Carolina Family Policy Council along with 19 other family policy organizations signed on to an amicus brief asking the U.S. Supreme Court to take up the Kenosha case in order to bring some sanity back to the bathroom privacy issue by not only allowing parents and school districts to have a say in determining privacy policies, but also to reinforce that biological sex distinctions matter in public educational facilities.
  • Even Supreme Court Justice Ruth Bader Ginsburg recognized in 1975 that sex discrimination prohibitions in law did not mean that privacy must be compromised.
  • When courts rule as the 7th Circuit did in the Kenosha case, they are violating the rule of law itself by circumventing Congress, which alone has the people’s voice and the authority to change laws.

View the full video to find out more.

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