Cabarrus schools sued over biological males in girls’ restrooms

Three families have filed a federal lawsuit alleging that a Cabarrus County high school allows biological male students to use female restrooms.

Cox Mill High School students identified as Mary Doe, Beth Roe, and Diane Poe — along with their mothers — filed the suit Friday against the Cabarrus school board and Superintendent John Kopicki.

“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.

“Cabarrus schools sued over biological males in girls’ restrooms” was originally published on www.carolinajournal.com.