Proposed Va. school policy violates children's privacy, invites lawsuits

ADF letter encourages district to maintain distinct facilities for boys, girls

Wednesday, May 6, 2015

Attorney sound bites: Matt Sharp | Jeremy Tedesco

FAIRFAX, Va. – Alliance Defending Freedom sent Fairfax County Public Schools a letter Wednesday that explains the problems with a proposed policy that would eliminate the longstanding and common-sense policy of designating restroom facilities for use by one sex, thus allowing students to use restrooms and changing areas reserved for the opposite sex.

Instead, ADF is offering a model policy that addresses the concerns which prompted the proposal, slated for a vote Thursday, but does not allow both sexes to use the same restrooms and locker rooms – a recipe for potential legal liability when it comes to children’s privacy and safety.

“Schools have a duty to protect the privacy, safety, and dignity of all students,” said ADF Legal Counsel Matt Sharp. “Certain advocacy organizations are ignoring this duty and pressuring schools to tear down the long-standing tradition of having distinct facilities for boys and girls at school. Schools should reject this radical social experiment, which impacts the most vulnerable members of our society, is not required by any federal law, and lacks common sense.

The ADF letter explains that, contrary to what some mistakenly believe, no federal law requires public schools to allow boys into girls’ restrooms or girls into boys’ restrooms. In fact, state authorities could be exposing themselves to legal liability for violating students’ privacy rights and placing children in potentially unsafe conditions.

“No court has ever interpreted Title IX as requiring schools to give students access to opposite-sex restrooms and changing areas,” the letter explains. “Rather, courts have consistently found that schools do not discriminate under Title IX when they limit use of sex-specific restrooms to members of the specified biological sex…. Students have the fundamental right to bodily privacy and that right is clearly violated when students – much less kindergarteners as young as five years old – are forced into situations where members of the opposite sex may view their partially or fully unclothed bodies.”

“Schools can accommodate a small number of students that have different needs without compromising the rights of other children and their parents,” added ADF Senior Legal Counsel Jeremy Tedesco. “No child should be forced into an intimate setting – like a bathroom or a locker room – with a child of the opposite sex. Our model policy provides a solution without exposing schools to liability and without exposing children to threats to their privacy and safety.”

Pronunciation guide: Tedesco (Tuh-DESS’-koh)

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.

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Legal Documents

ADF letter to Fairfax County Public Schools: (2015-05-06)

Related Resources

ABOUT Matt Sharp

Matt Sharp serves as senior counsel with Alliance Defending Freedom, where he is the director of the Center for Public Policy. In this role, he leads ADF's team of policy experts as they craft legislation and advise government officials on policies that promote free speech, religious freedom, parental rights, and the sanctity of human life. Since joining ADF in 2010, Sharp has authored federal and state legislation, regularly provides testimony and legal analysis on how proposed legislation will impact constitutional freedoms, and advises governors, legislators, and state and national policy organizations on the importance of laws and policies that protect First Amendment rights. He has twice testified before the U.S. Congress on the importance of protecting free speech and religious liberty in federal law. Sharp also authored an amicus brief to the U.S. Supreme Court on behalf of nearly 9,000 students, parents, and community members asking the court to uphold students’ right to privacy against government intrusion. Sharp earned his J.D. in 2006 from the Vanderbilt University School of Law. A member of the bar in Georgia and Tennessee, he is also admitted to practice in several federal courts.