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Supreme Court of the United States NO. 16-273 In the Supreme Court of the United States GLOUCESTER COUNTY SCHOOL BOARD, Petitioner, v. G.G., BY HIS NEXT FRIEND AND MOTHER, DEIRDRE GRIMM, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit BRIEF OF AMICI CURIAE 8,914 STUDENTS, PARENTS, GRANDPARENTS, AND COMMUNITY MEMBERS, ET AL., IN SUPPORT OF PETITIONER Kristen K. Waggoner David A. Cortman Counsel of Record J. Matthew Sharp Gary S. McCaleb Rory T. Gray Alliance Defending Freedom Alliance Defending Freedom 15100 N. 90th Street 1000 Hurricane Shoals Rd. Scottsdale, AZ 85260 N.E., Ste. D-1100 [email protected] Lawrenceville, GA 30043 (480) 444-0020 (770) 339-0774 Counsel for Amici Curiae i TABLE OF CONTENTS INTEREST OF AMICUS CURIAE ...................................... 1 SUMMARY OF ARGUMENT ............................................. 2 ARGUMENT .................................................................. 3 I. Title IX Does Not Require Schools to Violate Bodily Privacy Rights By Allowing Students to Use Locker Rooms, Showers, and Restrooms of the Opposite Sex. .................................................. 5 II. Students’ Bodily Privacy Rights Bar the School Board From Opening Sex-Specific Locker Room, Shower, and Restroom Facilities to Members of the Opposite Sex. ........................ 12 III.Exposing Individuals to Members of the Opposite Sex in Places Where Personal Privacy is Expected is Forbidden by the Constitutional Right of Bodily Privacy. ............. 14 IV. Bodily Privacy Rights Preclude Opening Even Certain Sex-Specific Places of Public Accommodation to Members of the Opposite Sex. ...................................................................... 18 V. Even in the Prison Context, the Constitutional Right of Bodily Privacy Forbids Regularly Exposing Unclothed Inmates to the View of Opposite-Sex Guards, and Students Have Much More Robust Privacy Rights. ................... 21 CONCLUSION .............................................................. 24 ii APPENDIX Appendix A: List of amici curiae students, parents, grandparents, and community members .............................................................. 1a Appendix B: List of amici curiae national and state family policy councils ............................ 272a iii TABLE OF AUTHORITIES CASES Arey v. Robinson, 819 F. Supp. 478 (D. Md. 1992) .......................... 23 Backus v. Baptist Med. Ctr., 510 F. Supp. 1191 (E.D. Ark. 1981) ................... 20 Beard v. Whitmore Lack Sch. Dist., 402 F.3d 598 (6th Cir. 2005) ............................... 12 Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) ............................................. 24 Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) ............................................... 4 Brooks v. ACF Indus., Inc., 537 F. Supp. 1122 (1982) .................................... 15 Carcano v. McCrory Berger, No. 1:16CV236, 2016 WL 4508192 (M.D.N.C. Aug. 26, 2016) ..................................................... 11 Cornfield v. Consol. High Sch. Dist. No. 230, 991 F.2d 1316 (7th Cir. 1993) ............................. 13 Dawson v. Kendrick, 527 F. Supp. 1252 (S.D. W. Va. 1981) ................ 23 Doe v. Renfrow, 631 F.2d 91 (7th Cir. 1980) ................................. 12 iv Etsitty v. Utah Transit Auth., 502 F.3d 1215 (10th Cir. 2007) ........................... 21 Faulkner v. Jones, 10 F.3d 226 (4th Cir. 1993) ................................. 18 G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016) ................................. 9 Hudson v. Goodlander, 494 F. Supp. 890 (D. Md. 1980) .......................... 23 Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995) ............................................... 4 Johnston v. Univ. of Pittsburgh, 97 F. Supp. 3d 657(W.D. Pa. 2015) ............... 9-10, 13 Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 F. App’x 492 (9th Cir. 2009) ........................ 13 Lee v. Downs, 641 F.2d 1117 (4th Cir. 1981) ....................... 21-22 Livingwell (North) Inc. v. Pa. Human Relations Comm’n, 606 A.2d 1287 (Pa. Commw. Ct. 1992) ......... 18-20 Michael M. v. Superior Court of Sonoma Cnty., 50 U.S. 464 (1981) ............................................... 14 Morse v. Frederick, 551 U.S. 393 (2007) ....................................... 12, 24 v New Jersey v. T.L.O., 469 U.S. 325 (1985) ............................................. 12 Norwood v. Dale Maintenance System, Inc., 590 F. Supp. 1410 (N.D. Ill. 1984) ................. 15-17 Poe v. Leonard, 282 F.3d 123 (2d Cir. 2002) ................................ 23 Safford Unified Sch. Dist. v. Redding, 557 U.S. 364 (2009) ....................................... 11, 13 Sepulveda v. Ramirez, 967 F.2d 1413 (9th Cir. 1992) ............................. 12 Sommers v. Budget Mktg., Inc., 667 F.2d 748 (8th Cir. 1982) ............................... 21 Strickler v. Waters, 989 F.2d 1375 (4th Cir. 1993) ............................. 22 Teamsters Local Union No. 117 v. Wash. Dep’t of Corr., 789 F.3d 979 (9th Cir. 2015) ............................... 23 Texas v. United States, No. 7:16-CV-00054-O, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016) ............................................. 14 Thomas ex rel. Thomas v. Roberts, 261 F.3d 1160 (11th Cir. 2001) ........................... 12 vi Tuan Anh Nguyen v. I.N.S., 533 U.S. 53 (2001) ............................................... 11 United States v. Virginia, 518 U.S. 515 (1996) ............................................. 10 STATUTES & REGULATIONS 20 U.S.C. § 1232g(a)(1)(D) ....................................... 24 20 U.S.C. § 1681 ......................................................... 3 20 U.S.C. § 1686 ......................................................... 5 6 C.F.R. § 17.410 ........................................................ 3 7 C.F.R. § 15a.33 ........................................................ 3 10 C.F.R. § 5.410 ....................................................... 4 10 C.F.R. § 1042.410 .................................................. 4 13 C.F.R. § 113.410 .................................................... 3 14 C.F.R. § 1253.410 .................................................. 4 15 C.F.R. § 8a.410 ...................................................... 4 18 C.F.R. § 1317.410 .................................................. 4 22 C.F.R. § 146.410 ................................................... 4 22 C.F.R. § 229.410 .................................................... 4 vii 24 C.F.R. § 3.410 ........................................................ 4 28 C.F.R. § 54.410 ...................................................... 4 29 C.F.R. § 36.410 ...................................................... 4 31 C.F.R. § 28.410 ...................................................... 4 32 C.F.R. § 196.410 .................................................... 4 34 C.F.R. § 106.32 ...................................................... 5 34 C.F.R. § 106.33 ................................................... 4-5 34 C.F.R. § 106.34 ..................................................... 5 36 C.F.R. § 1211.410 .................................................. 4 38 C.F.R. § 23.410 ...................................................... 4 40 C.F.R. § 5.410 ........................................................ 4 41 C.F.R. § 101-4.410 ................................................. 4 43 C.F.R. § 41.410 ...................................................... 4 44 C.F.R. § 19.410 ...................................................... 4 45 C.F.R. § 86.33 ........................................................ 4 45 C.F.R. §§ 618.410 .................................................. 4 45 C.F.R. §§ 2555.410 ................................................ 4 viii 49 C.F.R. § 25.410 ...................................................... 4 Md. Code Ann., State Gov’t § 20-303(a)(2) .............. 19 Conn. Gen. Stat. Ann. § 46a-64(b)(1)(B) ................. 19 11 R.I. Gen. Laws Ann. § 11-24-3.1 ......................... 19 Haw. Rev. Stat. Ann. § 489-4................................... 19 775 Ill. Comp. Stat. Ann. 5/5-103 ............................ 19 Virginia Code § 22.1-254 .......................................... 24 Wis. Stat. Ann. § 106.52(c)....................................... 19 OTHER AUTHORITIES 117 Cong. Rec. 30407 (1971) ................................... 6-7 117 Cong. Rec. 39260 (1971) ...................................... 8 117 Cong. Rec. 39263 (1971) ...................................... 9 118 Cong. Rec. 5807 (1972) ..................................... 7-8 1 INTEREST OF AMICUS CURIAE1 Amici are students whose right to bodily privacy is directly threatened by the reinterpretation of Title IX by the Departments of Education and Justice to supplement or supplant the term “sex” with “gender identity.” Student Amici are joined in this Brief by their parents and guardians who similarly have constitutional rights at stake, as well as grandparents and individual and organizational community members who are concerned about maintaining students’ right to bodily privacy. Appendix A lists them in full. The students attend public schools throughout the country that are subject to the May 13, 2016 Dear Colleague Letter issued by the Departments of Education and Justice. It is their constitutional right to bodily privacy that is negatively impacted by the Letter and the U.S. Court of Appeals for the Fourth Circuit’s decision. The National and State
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