Post Office Box 540774

Orlando, FL 32854-0774
Telephone: 8006711776
Facsimile: 4078750770
www.LC.org

122 C St. N.W., Ste. 360

Washington, DC 20005
Telephone: 2022891776
Facsimile: 2022169656

Post Office Box 11108

Lynchburg, VA 24506-1108
Telephone: 4345927000
Facsimile: 4345927700
liberty@LC.org

Reply to: Virginia

March 23, 2016

VIA EMAIL ONLY dhealy@trschools.com
Superintendent David M. Healy
Toms River Regional Schools
1144 Hooper Ave.
Toms River, NJ 08753
Re: Proposed transgender policy and violations of student privacy,
religious liberty and Title IX
Dear Superintendent Healy:
By way of brief introduction, Liberty Counsel is a non-profit litigation, education, and
policy organization with an emphasis on constitutional law, with offices in Orlando, Florida,
as well as Lynchburg, Virginia, and Washington, D.C. Liberty Counsel provides pro bono
legal representation to individuals, groups, and government entities, such as school
districts, with a particular focus on religious liberty and other First Amendment issues.
Liberty Counsel writes on behalf of concerned local residents regarding the Toms
River Regional School Districts (hereinafter, the District) consideration of proposed Policy
5756, Transgendered Students, which was tabled at the January 20, 2016 meeting for
further investigation and review. Liberty Counsel has reviewed this policy, and holds
significant constitutional concerns about this policy in its current form.
In its review of policy options on this issue, the District should be aware that no
federal or state law requires the District to allow students claiming transgender status
access to opposite-sex restrooms, lockers, and other areas, where other students have a
reasonable expectation of privacy based on biological sex. Neither Title IX, nor New
Jerseys Law Against Discrimination (LAD) are violated by single-gender restrooms and
lockers, as confirmed by the New Jersey Office of the Attorney General: Places of public
accommodation which, by their nature, are reasonably restricted to individuals of one
gender (such as dressing rooms or gymnasiums) may deny access to the accommodation
to members of the other gender.1

http://www.nj.gov/oag/dcr/accom.html

March 23, 2016

Pg. 2
The purpose of this letter is therefore 1) to offer assistance in defending the District
from meritless charges, if the District continues with or ultimately adopts a sensible and
legal gender-appropriate restroom and locker-room policy; and 2) to request that whatever
policy the District adopts does not violate the First Amendment and other clearlyestablished rights of the other students and teachers.
For numerous reasons, the District should reject proposed Policy 5756 (or anything
similar) as violating the privacy, modesty and religious liberty rights of the majority of
students, while being unhelpful to gender-confused transgender students, in that it affirms
them in their confusion.
Initially, if gender confused-students are not labeled or pigeonholed by government
authorities, and simply left to explore their feelings without undue influence by others, the
vast majority spontaneously outgrow their confusion, and will achieve congruence with their
biological sex. As observed by Dr. Paul McHugh, former chief psychiatrist at Johns Hopkins
Hospital, when children who reported transgender feelings were tracked without medical or
surgical treatment at both Vanderbilt University and Londons Portman Clinic, 70%-80% of
them spontaneously lost those feelings.
Moreover, Dr. McHugh has signed a recent position statement of the American
College of Pediatricians urging caution by educators and legislators, to avoid harming both
gender-confused and gender-congruent children. It is a grave disservice to genderconfused children (not to mention the majority of gender-congruent children) to enact policy
which affirms a false notion of reality, and which violates the other childrens fundamental
rights to privacy, modesty, safety, and religious practice accommodated by restroom
separation between biological males and females.2
In addition to the lack of scientific authority, there is no legal authority for the claim
that New Jersey or federal law requires the District to allow students to claim gender
identity access to opposite sex restrooms, facilities, and programs. Such assertions are
meritless, for the following reasons:
First, in applicable part, the New Jersey Law Against Discrimination (LAD) states
that
all persons shall have the opportunityto obtain all the accommodations,
advantages, facilities, and privileges of any place of public accommodationwithout
discrimination because ofcreed [religion]sex, [and] gender identity or
expressionsubject only to conditions and limitations applicable alike to all persons.
N.J. Stat. Ann. 10:5-4. (Emphasis added). Because the LAD prohibits discrimination on
the basis of sex and creed (held by New Jersey courts to include religion), any
accommodation of gender identity must at the same time refrain from discriminating
against other students, particularly biological girls, on the basis of those categories, or on
the basis of the right to privacy claimed in Roe v. Wade. 410 U.S. 113 (1973), wherein the
U.S. Supreme Court purported to recognize a right of personal privacy, or a guarantee of
certain areas or zones of privacyunder the Constitution. Id. at 153. Roe and its progeny
2

Paul McHugh, Transgender Surgery Isnt the Solution, THE WALL STREET JOURNAL, June 12, 2014, available at
http://www.wsj.com/articles/paul-mchugh-transgender-surgery-isnt-the-solution-1402615120.

March 23, 2016

Pg. 3
stand for nothing, if it does not stand for a guarantee of personal privacy for women and
girls.
Consistent with 10:5-4, all persons in the District are currently subject to the
same conditions and limitations of using a restroom or locker room or playing on a sports
team: any use or participation must be consistent with each persons biological sex.
Requiring objective consistency on the basis of biological sex is not discrimination based on
gender identity or expression. Nothing in the LAD requires any public accommodation
(including a public school) to allow access to restrooms, locker rooms, or sports teams on
any basis other than objective biological sex. So long as restrooms, locker rooms, and a
sports team opportunity are provided to all students, no child has been subjected to
discrimination.
Second, New Jersey nondiscrimination law in many ways mirrors federal
nondiscrimination law. Federal laws known as Title VII3 (covering employees) or Title IX4
(in the education context, covering students) prohibiting discrimination based on sex only
prohibit discrimination between males and females. Neither statute requires or supports the
idea that males are females, or the recognition of gender identity or expression, as
claimed by advocacy organizations such as Garden State Equality, the American Civil
Liberties Union (ACLU); or by agencies such as the U.S. Department of Justice (DOJ),
Equal Employment Opportunity Commission (EEOC), and Department of Educations
Office of Civil Rights (OCR).
Third, both the New Jersey School Board Association November/December 2015
article Gender Identity and School Law5 and the OCRs much-vaunted Questions and
Answers on Title IX and Sexual Violence6 fail to cite any legal authority - case law or
statutory - for the claim that the LAD or Title IX now apply to students claiming to be the
opposite sex for purposes of access to the opposite sexs restrooms and locker rooms. To
be sure, legal bullying around the country has resulted in some school districts needlessly
settling an OCR complaint, but federal agency ipse dixit does not make Title VII or Title IX
apply to concepts (or create definitions) not within the intent of Congress when a given law
was passed.
Fourth, despite the baseless positions of ACLU, DOJ and OCR, and their attempts to
strong-arm school districts around the country, a federal court in Virginia recently rejected
ACLU and OCRs positions and the DOJs statement of interest when it dismissed a Title
IX claim nearly identical to that claimed in the well-known Palatine, Illinois example. See
G.G. v. Gloucester County School Board, 2015 WL 5560190 at *9 (E.D. Va. 2015). Liberty
Counsel has filed an Amicus Brief to the Fourth Circuit Court of Appeals7 in that case.

Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352) (Title VII), as amended, as it appears in volume 42 of the
United States Code, beginning at section 2000e. Title VII prohibits employment discrimination based on race, color,
religion, sex and national origin.
4 Title IX of the Educational Amendments of 1972, 20 U.S.C. 168 1(a).
5 https://www.njsba.org/news/school-leader/11122015/gender-identity-and-school-law.php
6 http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
7 https://lc.org/PDFs/Attachments2PRsLAs/2015/113015GloucesterBriefAmicus.pdf

March 23, 2016

Pg. 4
Fifth, in addition to this case, and in addition to the lack of reported cases for OCRs
position, a federal judge in Johnston v. Univ. of Pittsburgh8 held in March 2015 that a policy
of requiring students to use sex-segregated bathroom and locker room facilities based on
students natal or birth sex, rather than their gender identity, does not violate Title IXs
prohibition of sex discrimination. (Emphasis added).
Finally, the decisions in Gloucester and Johnston are consistent with how numerous
other courts have dismissed cases of alleged discrimination brought by transgender
individuals claiming gender identity access to private facilities. See, e.g., Etsitty v. Utah
Transit Auth., 502 F.3d 1215, 1228 (10th Cir.2007); Brown v. Zavaras, 63 F.3d 967, 971
(10th Cir.1995); Braninburg v. Coalinga State Hosp., No. 1:08cv01457MHM, 2012 WL
3911910, at *8 (E.D.Cal. Sept.7, 2012) (it is not apparent that transgender [sic] individuals
constitute a suspect class); Jamison v. Davue, No. S11cv2056 WBS, 2012 WL
996383, at *3 (E.D.Cal. Mar.23, 2012) (so-called transgender individuals do not constitute
a suspect class, so allegations that defendants discriminated...are subject to a mere
rational basis review); KaeoTomaselli v. Butts, No. 11cv00670 LEK, 2013 WL 399184,
at *5 (D.Haw. Jan.31, 2013) (noting the plaintiffs status as a claimed transgender person
did not qualify the plaintiff as a member of a protected class and explaining the court could
find no cases in which transgender [sic] individuals constitute a suspect class); Lopez v.
City of New York, No. 05cv1032NRB, 2009 WL 229956, *13 (S.D.N.Y. Jan.30, 2009)
(explaining that because such individuals are not a protected class for the purpose of
Fourteenth Amendment analysis, claims that a plaintiff was subjected to discrimination
based on his status as a transvestite are subject to rational basis review).
Even if a heightened standard of review were applied, the result would be the same
as under rational basis review. A policy of limiting bathroom and locker room facilities on the
basis of birth sex is substantially related to a sufficiently important government interest.
Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir.2011) (quoting Cleburne v. Cleburne Living
Ctr., Inc., 473 U.S. 432, 44647, (1985)). Such a policy is based on the need to ensure the
privacy of students to disrobe, shower or use the restroom outside of the presence of
members of the opposite sex. This justification has been repeatedly upheld by courts. See,
e.g., Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir.2007) (the use of womens
public restrooms by a biological, cross-dressing male could result in liability for employer,
and such a motivation constitutes a legitimate, nondiscriminatory reason).
Conclusion
Everyone agrees that a student with gender confusion, who truly believes he or she
is the opposite sex, should be treated with care, compassion, and kindness. However, such
a student should not be officially affirmed in his or her confusion, no matter how sincerelyheld at the moment, because it is subject to spontaneous change. Not all desires can be
accommodated without compromise, at least without infringing upon the rights of others.

Johnston v. Univ. of Pittsburgh of Com. Sys. of Higher Educ., No. CIV.A. 3:13-213, 2015 WL 1497753 (W.D. Pa.
Mar. 31, 2015).

March 23, 2016

Pg. 5
Consistent with New Jersey and federal law, such a student should be
accommodated with a private, single-user restroom or changing area, or participation on a
sports team with other members of his or her biological sex. Despite the LAD, New Jersey
school districts are not required to override biology, as well as the modesty, privacy, safety
and religious concerns of other students, by creating improper access to opposite-sex
restrooms, lockers or programs. The District may not, under any circumstances, require
other students, upon pain of official sanction, to use obviously incorrect pronouns when
referring to a gender-confused student. In an effort to protect one protected class, the
District should not enact policy that actually discriminates against other classes protected by
the U.S. Constitution or New Jerseys LAD, including objective, biological sex, or religion.
Liberty Counsel, therefore, recommends that Policy 5756 be scrapped, and that
Toms River Regional Schools finds ways to accommodate gender-confused students in
ways that do not violate the privacy, modesty, or religious liberty rights of other students.
Liberty Counsel stands ready to assist the District in developing a constitutional policy that
would do this.
If the District does so, Liberty Counsel is prepared to provide pro bono assistance to
the District at no charge to the taxpayers. If the District violates the rights of other students,
however, Liberty Counsel is prepared to take further action to advocate on their behalf, as
well. Should you have questions about any of the points contained in this letter, please dont
hesitate to contact us at 407-875-1776.
Sincerely,

Roger K. Gannam9

CC:
Via Email:
Toms River School Board Members

Licensed

in Florida
in Virginia

Licensed

RLM/vab

Richard L. Mast, Jr. 10

trboe@trschools.com