Despite some frantic hysteria sweeping through conservative and pro-family circles, a recent decision by a federal judge did not – I repeat, DID NOT – rule that schoolgirls have no right to “visual bodily privacy.”
Contrary to the thinking of many conservative pundits, U.S. District Judge Jorge Alonso did not set a legal precedent allowing transgender boys (who claim to be girls) to see naked girls in school bathrooms and locker rooms.
What the judge did say, however, is that if such a right to “visual bodily privacy” does exist, it will be a question for a higher court or the U.S. Supreme Court to decide.
The legal issue surrounding this case is confusing and complex, no doubt. Let’s examine it more carefully.
In 2016, an organization called Students and Parents for Privacy (SPP) brought a federal lawsuit against the School Directors of Township High School District 211, Cook County, Illinois to protect children from either exposing their nude bodies to persons of the opposite sex or having to see the nude bodies of opposite sex genitalia.
In 2015 the Obama Administration Department of Education pressured the school district to adopt a restroom policy and a locker room policy that authorized opposite sex access to restrooms and locker rooms. The policy allowed children born as boys but who “identified as girls” to shower and use the girls’ restrooms and vice versa. This was to accommodate a particular student with male sex organs who thought he was actually a girl.
In 2016, the school district was sued in an Illinois federal court to stop those offensive and dangerous restroom and locker room policies. The privacy advocates urged the court to find that the restroom and locker room policies violated five different legal theories, among them was the fundamental right to privacy – that is, the right for students not to expose their naked bodies to the opposite sex or be placed in a position where they are exposed to opposite sex genitalia.
Some media outlets claimed that Judge Alonso found that there was no right to “visual bodily privacy” for high school girls. Actually, Judge Alonso made no legal decision at all on the matter. Instead, he simply observed that the Supreme Court has never ruled that “visual bodily privacy” is on a list of constitutional rights.
Judge Alonso said, “So far, the right not to be seen unclothed by the opposite sex is not on the Supreme Court’s list [of constitutional rights]” under the 14thAmendment to the United States Constitution. Judge Alonso went on to say that the superior courts have warned judges against finding new substantive rights.
As I read it, Judge Alonso simply left the question of a newly discovered constitutional right to “visual bodily privacy” for a court of appeals to decide or, ultimately, the U.S. Supreme Court.
In the Illinois case, the privacy advocates urged the court to find two new privacy rights: (1) a fundamental right to protect one’s own visual bodily privacy and (2) parents’ fundamental right to direct their children’s education.
The Illinois case raised the question whether the schools should cater to a small minority of sexually confused students at the expense of the majority. No reasonable person wants to persecute those whose sexuality falls outside the mainstream, but why should traditional morality suffer to accommodate the sexually confused?
The school district moved to dismiss the lawsuit. Judge Alonso did not dismiss the lawsuit entirely but did refuse to allow it to go forward on the alleged fundamental rights to privacy and rights of parents to direct their children’s education.
However, things have changed since the privacy advocates filed the lawsuit. First, the students involved, including the transgender student, graduated. Also, the United States Department of Education withdrew the Obama administration guidance that had caused the school district to adopt the offensive restroom and locker room policy. As result, the plaintiff voluntarily dismissed their lawsuit.
I spoke with lead counsel for the plaintiff. He explained that, among other things, the same issues are pending in other cases in other jurisdictions including one case that is awaiting a decision whether it would be heard by the United States Supreme Court. As result, the visual bodily privacy issue will be presented to other courts superior to the United States District Court for the Northern District of Illinois.
In the meantime, it would be a mistake to read the court’s opinion on the Motion to Dismiss as holding that there is no federal constitutional right to visual bodily privacy. It is more accurate to say that Judge Alonso declined to find such a right, deferring such decisions to courts superior to his.