A federal court in Minnesota received a complaint that a school’s rule to allow a transgender girl to change in a girls’ locker room is violating the privacy rights of a girl who, lawyers claim, feels as though she can’t play basketball if it means she has to change in the presence of the transgender girl, the Minneapolis Star-Tribune reports.
Federal judges across the country have rejected most arguments from school districts that claim they don’t have to follow recent guidance from the US Department of Education to allow unfettered access to bathrooms and locker rooms in schools to students based on their gender identity, even if it differs from their biological sex. But groups continue to fight against the guidance, and now a new argument from the anti-transgender camp has surfaced.
A nonprofit advocacy group has thrust itself into one case. Asserting the claim that the Fourth Amendment, which basically means that “each man’s home is his castle,” gives girls the right not to have to expose their bodies at the request of the school in a situation in which they don’t want to, the Alliance Defending Freedom says that enforcing the guidance infringes on the rights of girls in the locker room or bathroom.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (4th Amendment)
The part about “secure in their persons” has been narrowly interpreted to provide a right of privacy in 20th-century cases in the Supreme Court. But the alliance, a nonprofit that tends to fight for conservative issues, especially about abortion, nullifies its own argument by taking part in this case, known as Privacy Matters v US Department of Education.
Look, you can’t with one group of lawyers say that women’s privacy can be violated by the government forcing certain types of invasive ultrasounds and other procedures on them that are medically unnecessary just because they want an abortion and, with another group of lawyers, say that girls in schools have a right to privacy in a locker room and shouldn’t be compelled to undress in front of a transgender girl.
The hypocrisy is staggering, but it may not matter. The Supreme Court is likely to hear a Virginia case during this term involving this very issue, which will supersede any orders in this case and several others that grant or restrict the access transgender students have to bathrooms and changing rooms in schools and direct those schools on the lawful handling of these individual cases once and for all.
Of course, a tied Supreme Court—right now, we have an even number of justices, despite President Barack Obama’s nomination of a replacement justice—would fail to establish a precedent, and we could be right back where we are now, with different schools treating the issue very differently and federal courts not knowing what to make of it.