A "Religious Freedom" Legal Powerhouse Is Leading The National Fight Against Transgender Student Rights

››› ››› RACHEL PERCELAY

Alliance Defending Freedom (ADF), a powerful "religious freedom" legal organization with a history of anti-LGBT extremism, is working to eliminate non-discrimination protections for transgender students. Relying largely on the myth that allowing transgender people equal access to bathrooms is a "safety" concern, ADF has drafted model legislation and policies, testified at hearings, and encouraged the enactment of school district policies and statewide legislation that would prevent transgender students from accessing facilities consistent with their gender identity.

What Is Alliance Defending Freedom?

Alliance Defending Freedom Is A Powerful "Religious Freedom" Legal Organization. Alliance Defending Freedom (ADF) is a U.S. based legal organization that works with 2,600 allied attorneys nationally on a $39 million (as of 2013) annual budget. ADF describes itself as "an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith." [CharityNavigator.org, accessed 10/28/15; Alliance Defending Freedom, accessed 10/28/15; Alliance Defending Freedom, accessed 10/28/15

ADF Works Internationally To Criminalize Gay Sex. ADF has formally supported anti-sodomy laws since 2003 when it filed an amicus brief in Lawrence v. Texas to defend state sodomy laws on the grounds that gay sex is unhealthy, harmful, and a public health risk. Since then, ADF has actively worked to promote and defend anti-sodomy laws that criminalize gay sex in Jamaica, Belize and India.  [Equality Matters11/19/14]

ADF Engages In Domestic Anti-LGBT Extremism As Well. The Southern Poverty Law Center has described ADF as "virulently anti-gay." ADF's history of anti-LGBT activism includes opposing anti-bullying efforts in schools, crusading against a gay-inclusive Boy Scouts of America and labeling the hate crime that led to the murder of Matthew Shepard -- a gay University of Wyoming student who was beaten and tortured to death -- a hoax to advance the "homosexual agenda." ADF is also the behind the current national push for anti-LGBT "religious freedom" or "RFRA" laws. [Southern Poverty Law Center, accessed 11/2/15Media Matters12/4/15Media Matters4/16/15]

ADF Is Working To Deny Transgender Students Equal Access To School Facilities

ADF Claims Non-Discrimination Protections For Transgender Students Pose A "Public Safety Risk... To Woman And To Children." ADF claims that allowing transgender students to access facilities that correspond with their gender identity would "seriously endanger students' privacy and safety," and that laws that prohibit discrimination on the basis of gender identity create a "significantly increased public safety risk primarily to women and to children." [Alliance Defending Freedom, 9/09/15; Testimony of Michael J. Norton, Senior Counsel, Alliance Defending Freedom, 2/4/15]

"Safety" Concerns About Transgender Non-Discrimination Protections Have Been Debunked By School Districts. The myth that protections for transgender students will cause issues of harassment or other inappropriate behavior has been thoroughly rejected by the collective experiences of officials from 17 school districts across the country. Together representing over 600,000 students, these officials all reported that they'd experienced no issues after implementing protections for transgender students in their districts. [Media Matters, 6/3/15]

ADF Emailed School Districts Nationwide To Push A Model Policy Denying Equal Access For Transgender Students. In December 2014, ADF emailed public school districts across the nation to "advise" them of ADF's recommended "Student Physical Privacy" policy, which would prohibit transgender students from using school facilities that correspond with their gender identity. Additionally, ADF offered free legal representation to any school district that adopts ADF's policy and finds itself challenged in court (emphasis added):

Alliance Defending Freedom sent an email Thursday to public school districts nationwide to advise them of a recommended policy and letter that protects the physical safety and privacy of students in restrooms and locker rooms while providing a solution for school officials concerned about students struggling with their sexual identity.

[...]

"We advise school districts to adopt the attached policy regarding students' use of restrooms and changing areas instead," the letter continues. "It not only accommodates transgender students, but also protects other students' privacy and free exercise rights, and parents' right to educate their children, as well as insulates school districts from legal liability. If a school district adopts our model policy and it is challenged in court, Alliance Defending Freedom will review the facts and if appropriate offer to defend that district free of charge." [ADFmedia.org, 12/5/14]

ADF's "Student Physical Privacy Policy" Would Prohibit Transgender Students From Using Facilities That Correspond With Their Gender Identity.  ADF's model "Student Physical Privacy Policy" expressly forbids any transgender student from using any facility that corresponds to their gender identity:

A. Use of School Facilities

Notwithstanding any other Board Policy, student restrooms, locker rooms, and showers that are designated for one biological sex shall only be used by members of that biological sex. In any other school facilities or settings where a student may be in a state of undress in the presence of other students (i.e., changing costumes during school theatrical productions, etc.), school personnel shall provide separate, private areas designated for use by students based on their biological sex.

B. Accommodation of Biological Sex Non-Conforming Students

Students that exclusively and consistently assert at school that their gender is different from their biological sex shall be provided with the best available accommodation that meets their needs, but in no event shall that be access to the school restroom, locker room, or shower of the opposite biological sex. Such accommodations may include, but are not limited to: access to a single-stall restroom; access to a uni-sex restroom; or controlled use of a faculty restroom, locker room, or shower. [ADFmedia.org, accessed 10/14/15]

ADF Has Proposed Model Legislation Mirroring Their Discriminatory School Policy. Dubbed the "Student Physical Privacy Act," ADF has drafted a model state level bill that would similarly prohibit all public school students transgender students from using any facility that corresponds with their gender identity:

A. Designation and Use of Public School Facilities.

  1. Every public school student restroom, locker room, and shower room accessible by multiple students at the same time shall be designated for use by male students only or female students only.
  2.  In all public schools in this State, student restrooms, locker rooms, and showers that are designated for one sex shall be used only by members of that sex.
  3. In any other public school facility or setting where a student may be in a state of undress in the presence of other students, school personnel shall provide separate, private areas designated for use by students based on their sex

B. Accommodation for Certain Students.

  1. Students who consistently assert to school officials that their gender is different from their sex, and whose parent or legal guardian provides written consent to school officials, shall be provided with the best available accommodation, but in no event shall that accommodation be access to student restrooms, locker rooms, or shower rooms designated for use by students of the opposite sex while students of the opposite sex are present or could be present.
  2. Acceptable accommodations may include, but are not limited to: access to single-stall bathrooms; access to uni-sex bathrooms; or controlled use of faculty bathrooms, locker rooms, or shower rooms. [Alliance Defending Freedom, 2/4/15]

The "Student Physical Privacy Act" Would Place A $2,500 Bounty On Transgender Students. The "Private cause of action and penalties provided" section of the bill would allow students to "recover" $2,500 from a school for each time they "encounter" a transgender student in the "wrong" facility. [Alliance Defending Freedom, 2/4/15]

ADF Has Influenced Discriminatory State And School District Policies Across The Country 

Proposed Bills And Policies Across The Country Mirror ADF's Model Policy

Nevada Bill Proposed In March Almost Identical To ADF's Model Legislation. Nevada Assembly Bill 375, proposed in March 2015, mirrored components of ADF's model legislation. The Nevada bill ultimately failed after it initially passed an assembly vote. [Nevada Legislature, 3/17/15; American Civil Liberties Union, 4/21/15]  

Failed Kentucky "Privacy" Bill Was An Almost Exact Copy ADF's Model Legislation. In February, 2015 the Kentucky Senate approved SB 76, an "act relating to student privacy" that was almost an exact copy of ADF's model "Student Privacy Protection Act." The bill ultimately failed in the Democrat-led Kentucky House. [Kentucky Legislature, accessed 10/29/15]

Defeated Minnesota "Student Physical Privacy Act" Mirrored ADF's Privacy Policy. A bill called the "Student Physical Privacy Act" that was proposed in the Minnesota House drew heavily from ADF's student privacy policy. The bill was ultimately defeated in the Minnesota Senate after being added as an amendment to an omnibus education bill. [Minnesota House of Representatives, 3/5/15; cplaction.com, 5/1/15

Withdrawn Texas Bill Contained "Bounty" Portion Of ADF Physical Privacy Act. In April 2015, the House State Affairs Committee withdrew HB 2801, which would have prevented transgender students from using facilities that correspond with their gender identity. The bill also drew from the "bounty" portion of ADF's model Privacy Act by allowing students to hold a school district liable for at least $2,000 if they "encounter[ed]" a transgender student in the "wrong" bathroom.  [Human Rights Campaign, 4/16/15; Texas Legislature, accessed 10/29/15]

Gloucester County Public Schools In Virginia Adopted ADF's "Privacy" Policy. ADF commended Virginia's Gloucester County Public School District for adopting the ADF "model policy" in late 2014:

Gloucester County Public Schools have adopted a new policy that reserves restrooms and changing areas for members of the same biological sex, while also providing an alternative private facility for students struggling with sexual identity issues. 

Alliance Defending Freedom sent out a letter on Thursday commending the schools on this action. 

ADF says they recently sent the district a model policy and encouraged them to respect children's privacy and protect itself from legal liability in its effort to accommodate the needs of all students. 

"We applaud the district for listening to parents and respecting their right to control their children's education and upbringing," the ADF letter states. "As GCPS's policy on student privacy demonstrates, schools can reconcile the competing interests in these delicate situations by being respectful of the privacy concerns of all children and sensitive to the diverse needs of individual children." [WSLS10.com, 12/19/14]

Multiple Christian Schools Have Adopted ADF's Trans-Exclusive Policy. At least five private Christian schools across the country have copied verbatim Section A "Use of School Facilities" from ADF's model Student Physical Privacy Policy into their own school handbooks. These schools include:

  • Abundant Life Christian School, Madison, Wisconsin [Abundant Life Christian School, accessed 10/29/15]
  • Faith Christian Academy, Wausau, Wisconsin  [Faith Christian Academy, 9/2015]
  • Greenville Christian School, Greenville, Texas [Greenville Christian School, accessed 10/29/15]
  • Faith Christian High School, Coalinga, California [Faith Christian High School, accessed 10/29/15]
  • Colorado Springs Christian Schools, Colorado Springs, Colorado [Colorado Springs Christian Schools, accessed 10/29/15

ADF Has Testified In Multiple States And School Districts Urging Lawmakers Discriminate Against Transgender Students

ADF Provided "A Legal Argument" In Support Of Illinois School District's Trans-Exclusive Policy.  On October 19, 2015 ADF sent a letter to Township High School District 211 in Palatine, Illinois, supporting the district's decision to deny transgender students access to facilities that align with their gender identity. ADF provided a "legal argument" in support of the district's policy, in addition to suggesting the district implement ADF's own "Privacy Policy." [Alliance Defending Freedom, 10/20/15Chicago Tribune10/19/15]

ADF Asked Missouri School District Adopt "Physical Privacy" Policy. In August 2015, after high profile protests surrounding a transgender high school girl's access to her school locker rooms, ADF worked with a lawyer in Hillsboro, Missouri to send the district school board a letter requesting the district implement ADF's model "Physical Privacy" school policy. [The New York Times,9/1/15; Alliance Defending Freedom, 8/25/15]

ADF Tried To Appeal Kentucky High School Trans-inclusive Policy With Own "Model Policy." ADF submitted an appeal of a trans-inclusive school policy at Atherton High School in Louisville, Kentucky after a lengthy debate over the school's non-discrimination policy for transgender students.  ADF requested a hearing on the matter, and proposed their own "model policy" instead. Ultimately, the trans-inclusive policy stood even after the hearing, which brought up "possible safety issues for students."[The Courier-Journal, 9/9/14]

ADF Attempted To Reverse Transgender Friendly School District Policy In Tucson. After Arizona's Tucson Unified School District added "gender identity and expression" to its non-discrimination policy in March 2014, ADF sent a letter to the school district asking it to reverse the trans-inclusive policy and instead implement ADF's own model policy, calling the protections a "threat to student safety." The school board and district Superintendent ultimately dismissed ADF's letter, standing behind their non-discrimination policy. [Alliance Defending Freedom, 5/1/14; Tucson.com, 5/3/14; Tucson.com; 5/9/14]

ADF "Helped Explain" Failed Locker Room Bill To Colorado Legislature. In February 2015, Colorado Rep. Kim Ransom's introduced HB 15-1081, a so-called "physical privacy" bill, which would have prohibited transgender students from using the locker room that aligned with their gender identity. An ADF attorney "help[ed] explain" the bill to the committee, where it ultimately died after being criticized for rolling back Colorado's existing protections for transgender people (emphasis added):

A piece of legislation on locker-room privacy was characterized as protection for children Wednesday, but opponents that included legislators, a high school principal and the American Civil Liberties Union said it would roll back protections for transgender people.

The bill failed 7-4.

[...]

Privacy has been cited in several states to attempt to roll back laws that protect transgender people. At Wednesday's hearing, Ransom had a lawyer from the powerful Christian conservative Alliance Defending Freedom help explain her bill to the committee. [The Denver Post2/4/15 

ADF Provided "Legal Analysis" For Failed Nevada "Privacy" Act. In March 2015, ADF provided "legal analysis" of Nevada AB 375, dubbed the "Student Physical Privacy Protection Act," a failed bill that would have adopted ADF's discriminatory policy for the entire state. ADF's legal analysis claimed that the bill would "have many positive benefits." ADF Senior Legal Counsel Jeremy Tedesco also wrote an op-ed in favor of the Act in the Law Vegas Review-Journal.  [Nevada Legislature, 3/24/15; Las Vegas Review-Journal, 4/21/15

ADF Attorney Testified Against Trans-inclusive School District Policy In Fairfax, Virginia. Alliance Defending Freedom Attorney Casey Maddox testified against a Fairfax County School Board decision to add "gender identity" to the school district's non-discrimination policy:

One slot, which had been reserved by a former school board member who was censured during his tenure for promoting "ex-gay" lessons in schools, was yielded to Casey Maddox, an attorney with the anti-LGBT Alliance Defending Freedom. He argued that there is no legal requirement to protect transgender children -- a sentiment not shared by the Department of Education. [ThinkProgress, 5/8/15]

Posted In
Diversity & Discrimination, LGBT
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