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The Truth About Bathrooms and Sex

There’s a new front in the battle over school bathrooms and locker rooms.

Previously, we reported [1] that the U.S. Supreme Court would hear the case of Gloucester County School Board v. G.G.  This is the case of a female student in Virginia who identified as male and sought to use the boys’ bathroom and locker room.  The school refused and the student sued, claiming sex discrimination, which is barred under Title IX, a federal law prohibiting discrimination in schools.  Based upon the Obama Administration’s interpretation of “sex” in Title IX to include “gender identity,” the Fourth Circuit ruled against the school.  The Supreme Court was scheduled to hear the case on appeal, but before it could do so, the Trump Administration revoked the Obama interpretation.  In response, the Supreme Court remanded [2] the case back to the Fourth Circuit.

As this case fades from the spotlight, a new case [3] takes center stage.

“Joel Doe” is a junior at Boyertown Area High School, in Pennsylvania.  Last October, Joel was in the boys’ locker room undressing for physical education class.  Standing in his underwear, he looked across the room and saw another student, standing in her bra.  Confused and deeply embarrassed, Joel quickly put on his clothes and left.  He and several boys soon after approached their principal to express their deep upset that a girl was allowed in the boys’ locker room, violating their right to privacy.  In response, the principal and other school officials responded that there was nothing they could do and that the boys had to act as naturally as possible.

When Joel’s parents met with school officials, they received the same nonchalant rebuff.  Too embarrassed, apprehensive and uncomfortable to risk another half-clad encounter, Joel refuses to change for class, resulting in a failing grade for every class he misses as well as the bullying of classmates.

Seeking to protect Joel’s, and all other students’, right to privacy, Alliance Defending Freedom (“ADF”) recently filed a lawsuit against the school district on Joel’s behalf.

The lawsuit alleges that the locker room policy constitutes sexual harassment under Title IX, and is a violation of state privacy law, and of Joel’s fundamental right to bodily privacy under the Fourteenth Amendment.

At the heart of the lawsuit is the right to privacy, which ADF counsel argue is “deeply rooted in the nation’s history and tradition and has been recognized as flowing from the United States Constitution as well as federal and state statutory and common law.”  In the past, this “right of privacy” has been contorted to support invented “rights,” such as the “right” to abortion.  But in this case, it does not require mental gymnastics to recognize that a person has a fundamental right not to be required to disrobe in front of members of the opposite sex.

Reflecting this right and in the interest of protecting the dignity (and safety) of persons, laws have traditionally required the separation of the sexes in dressing rooms, showers and bathrooms.  This is especially the case for children who are in special need of protection, and why Pennsylvania law requires, and Title IX permits, the provision of separate bathroom and changing facilities for the sexes in schools. The right to privacy and these federal and state laws are rooted in a basic truth: human persons are male and female.

ADF counsel assert in their complaint:

[d]ifferences in anatomy is the only reason for separate facilities.  Were there no differences in anatomy, there would be no privacy interests justifying separate facilities in the first place.  These differences do not disappear when biological females self-identify as males, and vice versa.

Biological fact is an objective reality that does not change according to our labels or subjective wishes.  There is no doubt that persons suffering from gender dysphoria deserve respect and support as they work through their struggles.  But that respect and the love owed to such persons by virtue of their human dignity does not require us to deny objective truth.  Rather, our respect for others demands that we speak the truth, in love, even when it is uncomfortable.

This case is not only about privacy rights, but it is about the right to speak the truth. School officials belittled and dismissed Joel when he expressed his concerns and his classmates bullied him.  Sadly, his story is not unique.  All across the country, the pursuit of truth has been trampled by the march of dogmatic progressive ideology, which tolerates no opposing view.

This frightening trend is lamented by truth-seekers of all political persuasions, notably professors Robert George and Cornel West, who, although on opposite ends of the political spectrum, recently penned a joint statement on freedom of thought, expression, and seeking the truth:

The pursuit of knowledge and the maintenance of a free and democratic society require the cultivation and practice of the virtues of intellectual humility, openness of mind, and, above all, love of truth….So someone who has not fallen into the idolatry of worshipping his or her own opinions and loving them above truth itself will want to listen to people who see things differently….

We all have a choice: we can humbly seek and speak the truth even when it is uncomfortable to do so; we can silence the truth; or, we can question its very existence, joining Pontius Pilate in his skeptical question, “What is truth?”

Which option will you choose?