Tennessee attorney general wrong about student privacy law

ADF: No state has ever lost Title IX funding for protecting physical privacy of children

Thursday, Apr 14, 2016

Attorney sound bite:  Jeremy Tedesco

NASHVILLE – Tennessee Attorney General Herbert Slatery released an erroneous opinion Monday which stated that HB 2414, a bill that protects students’ physical privacy in public school restrooms, violates federal law and puts Tennessee public schools’ federal funding at risk. In a newly released document, Alliance Defending Freedom shows that bills like HB 2414 do not violate Title IX, a law that prohibits sex discrimination in schools that receive federal funding but that specifically says separate restrooms based on biological sex are allowed.
 
“Contrary to the inaccurate guidance coming from the U.S. Department of Education and now the Tennessee attorney general, Title IX specifically states that separate restrooms and changing facilities on the basis of biological sex are permitted,” said ADF Legal Counsel Matt Sharp, who testified last month before a legislative subcommittee about the bill. “Thus, under current law, states and school districts that enact laws and policies requiring students to use restrooms and locker rooms that correspond to their biological sex do not violate Title IX. The threats about losing funding are simply empty threats.”
 
Title IX and its regulations state that a school receiving federal funds can “maintain separate living facilities for the different sexes” and “provide separate toilet, locker room, and shower facilities on the basis of sex” without putting its federal funding at risk.
 
To protect students’ privacy rights and safety, HB 2414 ensures that students either use restrooms and locker rooms that align with their biological sex or use single-stall restrooms. In his opinion, Slatery inaccurately claimed that HB 2414 violates Title IX “because the U.S. Department of Education…interprets Title IX to require that transgender students be given access to restrooms and locker rooms consistent with their ‘gender identity’ instead of their anatomical gender.”
 
“In truth, Title IX makes no such requirement,” explained ADF Senior Counsel Jeremy Tedesco. “DOE’s interpretation is completely off-base. What the law says is what matters, and the law explicitly allows separate restrooms and locker rooms. The DOE oversees but cannot change Title IX, which only Congress can modify, so the agency has no legal basis for forcing schools to open restrooms to students of both sexes.”
 
Every federal court to examine the issue has concluded that maintaining separate restrooms and locker rooms on the basis of sex does not violate Title IX. The attorneys general of South Carolina, West Virginia, Mississippi, and Arizona recently reinforced this by correctly applying Title IX in their friend-of-the-court brief filed in the case G.G. v. Gloucester Country School Board.
 
In January, ADF sent a letter to all public school districts in Tennessee to explain that no law requires Tennessee schools to open restrooms to members of the opposite sex. The letter encouraged districts to adopt their own student privacy policies that accommodate students with unique needs, such as access to a unisex bathroom, while protecting other students’ privacy rights in sex-specific restrooms and locker rooms.
 
  • 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

Tennessee attorney general's opinion: HB 2414
ADF legal analysis: Title IX and sex-specific restrooms

Related Resources

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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.


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