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Business, Free Enterprise and Constitutional Issues; Pro-Life and Pro Second Amendment. Susan Lynn is a member of the Tennessee General Assembly. She serves as Chairman of the Consumer and Human Resources subcommittee, a member of the Finance Ways and Means Committee and the Ethics Committee. She holds a BS in economics and a minor in history.

Sunday, March 06, 2016

Restroom Bill - Talking Points - HB 2414

Allowing students to use restrooms, locker rooms, and showers that are reserved for students of a different biological sex will create significant potential for disruption of school activities and unsafe situations, not to mention the potential for shame, embarrassment, and psychological injury to students and potential lawsuits for damages and invasion of privacy.

·        No child should be forced by the government into an intimate setting – like a restroom or locker room – with another child of the opposite birth sex.

o   This bill ensures that a local school district or institute of higher education does not jeopardize the safety of some students in an attempt to accommodate other students.

·        Protecting the privacy rights of students is of utmost importance in order to foster a safe and ordered learning environment.

o   Parents have a reasonable interest and expectation that schools will not implement a policy that allows their children to be viewed in various stages of undress by a member of the opposite birth sex.

o   The bill allows a local school district or institute of higher education, at their discretion, to make single-stall restrooms available to students.

·        This bill is fully in compliance with Title IX, which allows schools to “provide separate toilet, locker room, and shower facilities on the basis of sex” without committing sex discrimination.

o   Opponents of this bill will point to a Dept. of Ed. “significant guidance document” that purports to extend the prohibition against sex discrimination to include gender identity.

o   That document, from the Obama administration, is not binding and has no force of law, and it was explicitly rejected as authoritative by a federal court in 2015.

·        Two federal cases in 2015 upheld university and high school policies, respectively, that “required students to use sex-segregated bathroom and locker room facilities on the basis of the students’ natal or birth sex, rather than gender identity.”

·        Without this bill, a local school district or institute of higher education that granted access to opposite-sex facilities could be subject to massive tort liability for violating the privacy rights of both students and parents.

  • Will this bill undermine local control of schools by enacting a statewide rule?
    • No.  This bill allows local schools to develop whatever policy they want as long as that does not include allowing boys to go into girls’ bathrooms and vice versa.  The bill respects local control and only disallows one bad option:  boys in girls’ locker rooms, showers, and bathrooms.  This provision is in full compliance with Title IX which explicitly allows bathrooms and locker rooms to be separated on the basis of sex.
    • Arguing for “local control” on this issue is supporting the right of local school to enact a policy which allows boys to enter girls’ bathroom, locker room, and shower facilities.

  • Will this bill result in lawsuits against local school districts?
    • No.  The bill creates uniformity across the state, thus insulating local schools from claims that their policy is discriminatory with regard to keeping boys out of girls’ bathrooms.  Any lawsuit over this bill would be filed against the state, not local districts.
    • However, without this bill, local schools could be subjected to massive lawsuits due to invasion of privacy as a direct result of a school policy that allowed boys in girls’ locker rooms. 
  • Federal courts have held that even prisoners have the right to privacy to not be regularly viewed in a state of undress by a guard of the opposite sex.  Thus, a minor child, forced by a school to be in an intimate setting – locker room, bathroom, shower room – with a member of the opposite sex would have a clear case against a school for a direct violation of their constitutional right to privacy.
    • Passing this bill may result in ONE lawsuit against the state, which would be defended by the AG.  Not passing this bill results in numerous lawsuits against LEA’s that could drain the money and resources of each school.

  • Could the US DOE cut federal Title IX funding to Tennessee because of this bill?
    • Practically, it is important to note that in the 40+ year history of Title IX, no school has ever lost federal funding under Title IX.  This bill largely enacts language from Title IX so it is quite a stretch to claim that the US DOE would seek to de-fund a state for doing something that it explicitly has permission to do under Title IX.  Also, in the case of the schools that have already enacted similar statutes, DOE has not initiated proceedings to cut funding.
    • Even in the extreme case that DOE did attempt to pull funding, Title IX requires that funding must continue through the subsequent hearing and appeals process.  Threats from DOE regarding funding are an attempt to forge an out-of-court resolution because DOE is aware that Title IX itself and recent federal court cases support the language of this bill.  Thus, in a formal proceeding it would be difficult to justify cutting off funding due to a bill that is in compliance with Title IX and recent federal court decisions.

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