(Jeremy Tedesco) – The Nevada Student Physical Privacy Act maintains the longstanding practice of ensuring single-sex use of school restrooms and other intimate settings while providing accommodations for students struggling with sexual identity. What should be an uncontroversial bill has garnered significant national attention and has been the source of much misinformation.
Let’s set the record straight about Assembly Bill 375.
■ MYTH NO. 1: Title IX, the federal statute prohibiting sex discrimination by schools that receive federal funds, requires schools to open restrooms to students without regard to their biological sex.
FACT: Title IX does not prohibit the enactment of AB 375. In fact, it specifically authorizes it.
Just a few weeks ago, a federal court rejected a student’s claim that Title IX required her college to allow her to use male restrooms and lockers. The court conducted a thorough analysis of the relevant case law across the country on this issue and rightly concluded that the overwhelming consensus is that single-sex restroom and locker room facilities are allowable under Title IX.
In fact, Title IX’s implementing regulations specifically allow federal aid recipients to designate their restrooms, locker rooms, and showers for one-sex use. The pertinent regulation states that “(a) recipient may provide separate toilet, locker room, and shower facilities on the basis of sex” without violating the bar on sex discrimination.
■ MYTH NO. 2: The U.S. Department of Education issued a “significant guidance document” in April 2014 regarding Title IX that requires schools to allow students struggling with sexual identity to use restrooms regardless of biological sex.
FACT: The “significant guidance document” merely sets out the nonbinding department position that Title IX covers claims of gender identity discrimination.
This “significant guidance document” never mentions access to restrooms. The document certainly does not change Title IX’s regulations authorizing schools to create “separate toilet, locker room, and shower facilities on the basis of sex.” Further, the federal regulations expressly state that executive guidance documents have no binding legal authority whatsoever.
■ MYTH NO. 3: Proponents of AB375 must prove that it is necessary to limit restrooms, locker rooms and showers to persons of the same biological sex to justify passing it.
FACT: For rational, sensible and obvious reasons, our society has always required single-sex access to restrooms, locker rooms and showers, based primarily on privacy and safety concerns. The burden is actually on AB 375’s opponents to prove why this longstanding practice should suddenly be thrown out in schools.
Privacy and safety concerns are elevated in the school context, where students are compelled by law to attend and are deprived of the watchful oversight of their parents. Concerns are further augmented by parents’ fundamental right to control their children’s education and upbringing, including the extent of their children’s knowledge of the differences between the sexes. Forcing students into vulnerable interactions with opposite-sex students in secluded restrooms and locker rooms would violate students’ and parents’ basic rights.
The burden is on opponents to explain why we should ignore the privacy and safety rights of schoolchildren and parents.
■ MYTH NO. 4: AB375 denies transgender equal access to restrooms, locker rooms, and showers.
FACT: Transgender students already have equal access to these facilities based on their biological sex, and AB375 provides additional accommodation to those students who desire to use a restroom different from the one for their biological sex.
The fact that a few students struggle with sexual identity issues is not a reason to make biological sex irrelevant to the use of these types of facilities for all other students. In fact, AB375 seeks to accommodate sexually struggling students by providing a single-stall or unisex restrooms. To accede to the demands of AB375’s opponents is to eliminate biological sex as relevant to restroom access, not to discriminate based on sex. Attempting a reordering of our society should not happen in any setting, but to bring children into this seriously misguided social experiment is especially troubling.
An original version of this article is published on the Las Vegas Review-Journal.
Jeremy Tedesco is senior legal counsel for Alliance Defending Freedom, a Scottsdale, Ariz., nonprofit that advocates for the right of people to freely live out their faith.