ACLU Backs Cabarrus Schools In Federal Bathroom Access Suit

By Carolina Journal Staff

The American Civil Liberties Union is supporting Cabarrus County school officials in a federal lawsuit involving biological males’ access to female restrooms at a local high school.

Three Cox Mill High School families filed suit in August against the Cabarrus school board and superintendent John Kopicki. The defendants filed a motion in September to dismiss the suit. A separate court filing opposed the plaintiffs’ request for a preliminary injunction.

A friend-of-the-court brief Thursday from the ACLU and its North Carolina affiliate supported the school officials.

“Plaintiffs ask this Court to issue not one but two unprecedented holdings,” ACLU lawyers argued. “First, they ask this Court to leapfrog ahead of the Fourth Circuit and declare that the court’s binding precedent in Grimm v. Gloucester Cnty. Sch. Bd. — which held that Title IX and the Equal Protection Clause prohibit schools from categorically excluding transgender students from restrooms consistent with their gender identity—has been abrogated by West Virginia v. B.P.J. by Jackson.”

The US Supreme Court ruled in the West Virginia case in June. In a 6-3 decision, the high court upheld a state law restricting women’s and girls’ school sports teams to biological females.

“Second, Plaintiffs ask the Court to issue an unprecedented holding that Title IX and the Equal Protection Clause not only allow but require schools to exclude transgender students from those facilities,” the ACLU brief continued. “Neither request is warranted.”

“The Fourth Circuit places a heavy burden on parties seeking to disregard binding circuit precedent based on intervening Supreme Court decisions,” ACLU lawyers argued. “Under that standard a Supreme Court decision overrules or abrogates Fourth Circuit precedent only when it is impossible to reconcile the two decisions with each other. But Grimm and B.P.J. are easily reconcilable.”

“The Supreme Court repeatedly emphasized in B.P.J. that its analysis focused on the special characteristics of school sports,” the ACLU brief explained. “School sports are ‘zero sum’ where providing an opportunity to one student inherently denies an opportunity to another. And school sports are a rare context in which it was uncontested that sex-separation is justified based on biological sex-based differences, specifically differences related to athletic competition and safety.”

“Because neither of those special characteristics applies to sex-separated restrooms, the Supreme Court’s analysis of sports in B.P.J. does not necessarily extend to this very different context,” the ACLU argued.

“Plaintiffs challenge a policy that allows transgender students on a case-by-case basis to use restrooms and locker rooms consistent with their gender identity because the policy allows transgender girls (i.e. girls with a female gender identity who were assigned male at birth) to use the same facilities as cisgender girls,” the brief added. “But the policy also applies to boys’ facilities and is therefore sex-neutral. It does not subject anyone to disparate treatment based on their sex but rather classifies based on gender identity, which Plaintiffs insist is not a sex classification under either Title IX or the Equal Protection Clause. With no claim of disparate treatment based on sex, the policy easily survives rational basis review.”

“Plaintiffs’ concerns about privacy and personal dignity deserve respectful consideration,” wrote Ashley Leonard, the lawyer representing the school board and Kopicki, in the Cabarrus brief filed in September. “The question presented by Defendants’ Motion, however, is whether the allegations in the Amended Complaint state a claim under Title IX or the federal or North Carolina constitutions.”

“They do not,” Leonard wrote. “The Amended Complaint does not establish that Defendants discriminated against Plaintiffs because they are female. Plaintiffs were not denied access to female facilities. Instead, they challenge Defendants’ decision to permit a transgender student at one high school to use facilities consistent with their gender identity while offering private alternatives to students seeking additional privacy.”

“The Amended Complaint establishes that Defendants acted to comply with controlling Fourth Circuit law, considered individual circumstances, and attempted to address the concerns of affected students,” the court filing continued. “Title IX does not create a freestanding right to exclude transgender students from school facilities, permit recovery based on disparate impact, or impose monetary liability without the clear notice required of Spending Clause legislation. Plaintiffs likewise allege neither unequal treatment nor discriminatory purpose sufficient to support their federal or state equal protection claims.”

Other claims in the lawsuit “have independent defects,” Leonard wrote. “Plaintiffs do not allege an underlying constitutional violation or facts identifying a policy or custom attributable to the Board. North Carolina law also preempts the Board from independently adopting the facility-access regulation Plaintiffs demand.”

Three families filed the lawsuit in August alleging that Cox Mill High School allows biological male students to use female restrooms. Students identified as Mary Doe, Beth Roe, and Diane Poe — along with their mothers — are the plaintiffs.

“This action challenges Defendants’ policy of permitting biological males to access and use female restrooms, locker rooms, and changing room facilities at Cox Mill High School,” according to the 35-page complaint.

That action violates the rights of the three student plaintiffs “and other female students under Title IX of the Education Amendments of 1972, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and Article I, Section 19 of the North Carolina Constitution,” the lawsuit added.

“Throughout history, societies separated restrooms by biological sex ‘in order to address privacy and safety concerns arising from the biological differences between males and females,’” wrote the plaintiffs’ lawyers, including representatives of the America First Legal Foundation. “Sex-separated restroom facilities likewise were commonplace when the Fourteenth Amendment was ratified.”

“Sex-separated restrooms became the norm in our Nation precisely to advance women’s interest in privacy, dignity, and safety,” the lawsuit argued. “Laws requiring separate restroom facilities for women were ‘among the earliest state-wide attempts to protect women from workplace sexual harassment.’ The adoption of women’s restrooms also marked a significant achievement of the women’s rights movement.”

The suit cites a 50-year-old Washington Post column from a future US Supreme Court justice. “As then-Professor Ruth Bader Ginsburg explained in 1975, ‘[s]eparate places to disrobe, sleep, [and] perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.’”

“Against this historical backdrop, the Supreme Court has repeatedly recognized that laws and policies distinguishing between males and females are not inherently unconstitutional,” the plaintiffs’ lawyers wrote. “Although governmental classifications based on sex are subject to heightened scrutiny, the U.S. Constitution does not require the government to ignore the real biological differences between the sexes.”

“To the contrary, the Court has long recognized that ‘[p]hysical differences between men and women … are enduring’ and that those differences may justify sex-based distinctions,” according to the suit.

“Consistent with that principle, the Supreme Court recently affirmed that separating school sports based on biological sex serves important governmental interests,” the plaintiffs’ lawyers wrote. “Those interests include protecting the dignity and safety of women and girls. … These longstanding constitutional principles foreclose any contention that Defendants are required by law to abandon sex-separated intimate facilities.”

The three student plaintiffs “have been subjected to the presence of biological males in their school restrooms, locker rooms, and changing areas,” the suit explained. “Mary Doe and Beth Roe reported their discomfort and objections to school administrators, who told them the school could do nothing and that the policy was required by law.”

“Diane Poe did not raise her objections because her team coach communicated that any student who objected to the policy or the full participation of transgender students should quit the team, causing her to reasonably believe that speaking out would jeopardize her participation in school athletics,” the suit added. “Rather than protect its female students’ privacy and safety, Cabarrus County Schools placed the burden on those students to use alternative facilities while permitting biological males to continue using intimate spaces designed and designated for girls.”

The school’s principals responded to the student plaintiffs’ concerns by offering to allow those students to use staff restrooms instead of the student restrooms, according to the suit. The principals indicated they were following the law in allowing the biological males to use the female restrooms, the suit alleged.

The lawsuit seeks declaratory judgments that “a policy requiring students to use the bathroom and other intimate facilities that correspond with their biological sex does not violate Title IX or the Equal Protection Clause of the U.S. Constitution” and that “Defendants’ policies and practices violate Title IX, the Equal Protection Clause of the U.S. Constitution, and Article I, Section 19 of the North Carolina Constitution.”

The plaintiffs also seek an injunction “requiring Defendants to provide Plaintiffs access to sex-segregated locker rooms, changing areas, showers, bathrooms, and other similar intimate places, and to do so without conditioning access on Plaintiffs segregating themselves from their classmates or teammates, being excluded from team or class activities, traveling to distant or inferior facilities, or bearing any other burden not borne on students generally.”

The suit seeks compensatory damages for “for emotional pain and distress, mental anguish, humiliation, loss of enjoyment of life, and other non-economic harm,” in an amount to be determined during a trial.