Justice Center Takes on Abuse of Judicial Power

Press Release by

Prof. William Wagner

WFFC Distinguished Chair for Faith & Freedom at SAU

The Great Lakes Justice Center Opposes Court Rulings That Force Elementary School Children to Share Bathrooms and Changing Rooms with Children of the Opposite Sex

The Great Lakes Justice Center just filed a brief in the United States Court of Appeals opposing  extremist positions of the federal judiciary and the National Center for Lesbian Rights. Both unconscionably used an 11-year-old child, and the landscape of public elementary schools, to forcibly further their transgender political agenda.  The case, Jane Doe v. Highland School District, involves a child, who is biologically a boy but, while a mere kindergartener, was labeled a transgendered girl.  Jane Doe seeks to use the girls’ bathrooms and changing rooms, and not the private unisex bathrooms offered by the elementary school.  The National Center for Lesbian Rights and Jane Doe’s parents claim the child could commit suicide due to not being allowed to use the bathrooms of the opposite sex.

As a rational method of offering a compromise solution to accommodate Jane Doe, school officials opened single stall unisex bathrooms to Jane Doe.  However, a district court in Ohio ruled, preliminarily, that this solution violates Jane Doe’s rights under Title IX and under the Equal Protection Clause of the Fourteenth Amendment.  The case is now before the United States Court of Appeals for the Sixth Circuit.

The Great Lakes Justice Center filed a brief to support the reasoned accommodations of school officials and to explain the legal errors contained in the district court’s flawed analysis. The Justice Center represents the Michigan Association of Christian Schools, Great Lakes Region of the American Association of Christian Schools, and Tim Schmig, the Executive Director of both organizations in this case.

In the brief, the Great Lakes Justice Center explains that “Jane Doe, like all children in the public school, must be treated with the utmost kindness and provided with a supportive educational environment that promotes excellence for both academic and personal growth.  But encouraging gender dysphoria or singling out this eleven-year-old as the one elementary school student allowed to enter the bathroom of the opposite sex does not help achieve this result; nor does compelling other public elementary school children to endure such a policy by surrendering their constitutional rights and sacrificing their bodily privacy.”

The District Court choose to ignore evidence submitted by the Highland School District that allowing members of the opposite sex into intimate places, such as the bathrooms and changing rooms of the elementary school, affects the constitutional rights and bodily privacy of other students, parents, and school employees.  For example, the District Court wholly ignored an affidavit of a parent of two foster children, both young girls who have experienced abuse and experience adverse psychological effects and anxiety sharing bathrooms and changing rooms with people of the opposite sex.

Current federal law permits schools to separate bathroom and changing room use by sex, and has done so for over forty years.  Title IX and its accompanying regulations, which outlaw sex discrimination, expressly allow school districts to “provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.”

The transgendered community like to compare the use of separate bathroom facilities to the “separation but equal” arguments put forward to defend race segregation.  However, the ability for women to use bathrooms and locker rooms separated from biological men has never been considered an impingement of women’s rights.  Instead the separation recognizes the reality that women and men are biologically different, but complimentary, sexes and biological reasons exist to separate the sexes when it comes to bathroom and locker room use to preserve personal dignity and bodily privacy.

In the brief, the Great Lakes Justice Center highlights the irony of the use of the term “tolerance” to defend a young child’s selection of gender identity and the concept that self-selected gender identity trumps the child’s biologically assigned sex.  Recently in this area, activist judges have used the term “tolerance” to advance the LGBTQ social engineering agenda, while attacking those with legitimate concerns, often dismissing them as bigots.  Such methods do not display tolerance, but seek to silence through oppression the voice of students, parents, and school administrators who legitimately want to preserve the rights and dignity of schoolchildren and to protect the educational environment from needless disturbances and distractions.  Tolerance does not force children, who have been sexually abused, into bathrooms and locker rooms with members of the opposite sex.

The brief discusses why the district court’s decision must be reversed as a matter of law:

  1. The Trump Administration rescinded the Obama Administration’s illegal and wrongheaded transgender mandate. Obama’s mandate, by executive fiat, sought to unilaterally change the language of Title IX.  The Trump Administration rescinded the transgender mandate on February 22, 2017.
  2. Title IX expressly allows bathrooms to be separated by sex, so there is no need to address Jane Doe’s claim that separate bathroom and changing room access violated the Equal Protection Clause.
  3. Transgenderism has never been considered a protected class under the Equal Protection Clause by the United States Supreme Court or the super majority of the United States Court of Appeals.
  4. Objective biological truths should not be ignored, especially in a public elementary school setting.
  5. The district court failed to consider the constitutional rights and bodily privacy rights of other students, parents, teachers, and school administrators.

William Wagner, President and Chief Counsel for the Great Lakes Justice Center, comments: “At some point truth has to matter again in this country. The Justice Center’s brief reminds the Court that no one, not even the Federal Judiciary is above the law.” The Great Lakes Justice Center’s brief is available here.


The Great Lakes Justice Center is a non-profit corporation protecting the First Amendment and other civil rights.  To support the Great Lakes Justice Center’s important work protecting our nation’s first freedoms, please visit our website at www.greatlakesjc.org.

About the Author

Prof. William Wagner
WFFC Distinguished Chair for Faith & Freedom at SAU
Professor Wagner holds the WFFC Distinguished Chair for Faith & Freedom at Spring Arbor University. He has a special interest in building and preserving environments where Christians may share the Good News of Jesus, free from persecution and oppression.

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