Alliance Defending Freedom/Christian Action League
April 29, 2016
DURHAM – This week, Alliance Defending Freedom, along with members of KeepNCSafe, which includes Dr. Mark Creech, executive director of the Christian Action League, sent a letter to Durham Public Schools requesting they reject a proposed policy that could be used to allow children access to bathrooms opposite to their biological sex.
Despite the concerns expressed in the letter, and raised by parents and concerned North Carolinians at the School Board meeting Thursday night, Durham School Board members unanimously voted to add “gender identity” to its Equal Educational Opportunity.
The new policy reads:
“The Board prohibits discrimination, harassment, or bullying based on any of the following protected classifications: race, color, religion, ancestry, national origin, gender, socioeconomic status, academic status, gender identity, physical appearance, sexual orientation, mental, physical, developmental, or sensory disability, immigration status, or any other classification that is protected by law, regulation or this policy.” 29 Board Policy 4000-Equal Educational Opportunity for All – Revised.
It also added: “The Board further prohibits discrimination against a person perceived to have any of the above characteristics or against a person for associating with someone protected by this policy.”
Every child should be treated with dignity and respect – which is why North Carolina already has laws against bullying based on gender identity. North Carolina’s new law, HB 2, the Bathroom Privacy law, protects all students’ privacy by requiring all public schools to maintain sex-specific restrooms, showers, and locker rooms, while providing accommodations for those uncomfortable using the restroom that corresponds with their biological sex.
“Our concerns are that the Durham School Board’s new policy now adds ‘gender identity’ to its nondiscrimination policy and that can create violations of privacy for other students. In other jurisdictions, these types of polices have been used to allow boys into girls’ restrooms and locker rooms,” said Dr. Creech. “While the Durham School Board states they enacted a policy to address only bullying – that is suspicious given the School Board’s resolution denouncing the State’s new common sense bathroom privacy law (HB 2) and the fact that bullying is already illegal in the Tar Heel state.
“The way the policy is written, it could be applied to allow boys into girls’ bathrooms, locker rooms and showers. The School Board could have easily exempted these and clarified the policy, but didn’t. In my estimation that ought to cause some concerns. What happens if a girl asks a boy who believes he is a girl to leave her restroom, or if the teacher tries to keep him out of the girl’s locker room? – that might be viewed as ‘harassment’ or a form of ‘discrimination’ based on ‘gender identity,’ added Dr. Creech. “By not fixing this potential compromise of students’ privacy the Durham School Board left students vulnerable.”
“No child should be forced into an intimate setting like a restroom or locker room with a person of the opposite sex. Protecting young children from exposure to members of the opposite sex in such settings is not only legal, it’s an important duty of officials who watch over our children,” said ADF Legal Counsel Kellie Fiedorek. “Letting boys into girls’ restrooms is an invasion of privacy and a threat to children’s safety. The school district could be subjecting itself to potential liability if the policy is used to apply to bathrooms and children are harmed.”
The letter sent by ADF and KeepNCSafe also explains that no law – including Title IX (the federal law concerning sex discrimination in public school programs and activities) requires public schools to allow boys into girls’ restrooms or girl’s into boys’ restrooms. In fact, Title IX and its regulations specifically state that a school receiving federal funds can “provide separate toilet, locker room, and shower facilities on the basis of sex,” without putting that funding at risk.
The letter also cites pertinent legal precedent, including court rulings that support the ability of public schools to limit restrooms and locker rooms to members of the same sex for privacy and safety reasons without violating Title IX.
Tami Fitzgerald, executive director of the North Carolina Values Coalition, said, “Every child deserves a safe space, and it’s our duty as parents to fight for their right to privacy. Schools can accommodate students that have different preferences without compromising the rights and completely understandable needs of other children and their parents. This is common sense. Biology, not feelings, should determine how our schools maintain intimate facilities and protect our children.”