Civil Rights for Me, But Not for Thee

Photo via Wikimedia Commons
Photo via Wikimedia Commons

The Obama administration’s campaign to force schools to open up restrooms, locker rooms, overnight sleeping accommodations, and probably sports teams to students of either sex is not going well. The latest opposition comes from several brave students in Minnesota’s Virginia Public Schools, who are reminding the administration that they, too, have rights.

The Alliance Defending Freedom (ADF) has filed a lawsuit on behalf of these students and their parents, alleging the U.S. Departments of Education (USED) and Justice (DOJ) and the Virginia Public Schools are endangering student privacy and safety by instituting the DNA-denying policies. The complaint describes in shocking detail what the female students have encountered since the schools caved to USED and DOJ pressure. For example, “a biologically male student who identifies as a female — and who is allowed to enter the girls’ locker room under the district’s policy — went on to dance in the locker room in a sexually explicit manner — ‘twerking,’ ‘grinding’ and dancing like he was on a ‘stripper pole’ to songs with explicit lyrics . . . .” When not gyrating, he commented on the girls’ body parts and suggested he would like to “trade.”

Determined to defend their dignity, the plaintiffs complained to school authorities about this harassment and invasion of privacy. But instead of removing the male, the authorities forced the girls into less convenient restrooms and locker rooms. One of the plaintiffs was so upset by these developments that she chose to attend a different school this year.

Among the multiple claims asserted by ADF is that the policy denies the girls their constitutional right to privacy as well as the benefits of Title IX, a federal statute that protects their access to classes, athletics, private locker rooms, and private restrooms. The plaintiffs also allege the policy creates a sexually harassing hostile environment in violation of Title IX.

This last claim illuminates the upside-down world created by the Left. Title IX obviously prohibits the harassment suffered by the Minnesota plaintiffs, even under the relatively restrictive interpretations that statute has always been given. But six years ago, the Obama administration greatly expanded the reach of the law in its application to student harassment and bullying — and now the administration wants to deny students relief even under that expanded interpretation. Why? Because their constitutional rights have for all practical purposes been transferred to a more-favored class — transgender students.

In October 2010, USED’s Office for Civil Rights issued a “Dear Colleague” letter warning hapless public schools that it would crack down on them if they failed to eliminate student harassment and bullying. The letter (as we described at the time) extended the concepts of harassment and bullying well beyond what federal case law recognized, even to “teasing” and “leaving people out on purpose” (i.e., to what kids do every day of the year) and to purely verbal conduct that could be merely a statement of opinion, protected by the First Amendment. It also decreed that school officials could be held liable if they “should have known” of the claimed bullying, even if they had no actual knowledge, and that even one episode of misconduct was sufficient to create a hostile environment if the plaintiff was upset by it (even if the conduct, viewed objectively, was innocuous). The letter changed the test of harassing behavior to any that “interfered with” a student’s access to educational programs, not just that “deprived” her of access. Finally, the letter expanded the definition of “sex” in Title IX to include sexual orientation.

Applying these tests to the Minnesota situation, the plaintiffs should have a slam dunk. The offensive conduct was both physical and verbal. It happened on multiple occasions. The plaintiffs were upset by it, as any reasonable girl would be. It interfered with their access to facilities and programs. And school officials were told about it time and again.

So, under any conceivable reading of the law — especially as the Obama administration read it in the Dear Colleague letter six years ago — the Minnesota plaintiffs should prevail. Does this mean USED and DOJ will back off, admit the obvious, and take steps to repair the situation? Don’t count on it. These plaintiffs are discovering that their rights must yield to those of another class of citizens, those who suffer from gender dysphoria. Whatever the transgendered want they shall have, and anyone who offers a competing claim is a bigot.

ADF Senior Counsel Gary McCaleb said, “Telling girls that their privacy and modesty don’t merit a private and secure changing area is an attack on women.” Indeed. But this is how the Obama administration has taken a statute designed to protect girls’ educational opportunities and perverted it to protect instead those who would deny those opportunities. Welcome to Wonderland.

Jane Robbins is an attorney and a senior fellow with the American Principles Project. Emmett McGroarty is the American Principles Project’s Director of Education.