Ariz. school district's bathroom policy jeopardizing children

TUCSON, Ariz. — Alliance Defending Freedom sent a letter to the Tucson Unified School District Thursday that asks it to reverse its new policy of allowing children to use bathrooms of the opposite sex. The letter provides a suggested policy that addresses the school district’s 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.”

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.”

In the letter, ADF offers to defend the school district free of charge if it adopts the ADF-recommended policy and then faces any legal challenge over it in court.