Thomas More Society Intervenes to Protect Child and Youth Privacy from ACLU “Sleight of Hand”

The Thomas More Society and the Alliance Defending Freedom are taking on the American Civil Liberties Union to defend the privacy and safety of thousands of Illinois students. In a season of #MeToo outcries against sexual harassment and threats, the ACLU is attempting to misuse non-discrimination provisions of the Illinois Human Rights Act (“HRA”) to dismantle student privacy at Township High School District 211. 

Public School District 211, which serves the northwest Chicago suburb of Palatine, Illinois, gained national attention in 2016 when administrators granted a male student access to girls’ locker rooms when he identified himself as a transgender girl.

Students and Parents for Privacy, a group of concerned parents and students at the school, filed a federal lawsuit to defend student privacy because of that incident. The group is now seeking to intervene in a new lawsuit in Cook County, Illinois (Maday v. Township High School District 211) to defend against claims made by the ACLU under Illinois state law, specifically the HRA. On January 11, 2018, the group filed an emergency motion to intervene and motion to dismiss the case, in which the ACLU is attempting to obtain unrestricted access for a transgender student in the school’s privacy facilities, including the girls’ locker room. Thomas More Society attorneys are appearing with ADF attorneys as co-counsel.

“The ACLU is trying to convince the court that restricting locker room access to either all girls or all boys is unlawful discrimination on the basis of sexual orientation, a protected class under the HRA,” explained Thomas Olp, Senior Counsel for the Thomas More Society. “But the HRA contains an explicit privacy facility exemption allowing public accommodations, including secondary schools like District 211’s schools, to reserve such facilities to a single sex. While restricting a privacy facility to a single sex does, of course, discriminate based on sex, the HRA explicitly allows this discrimination for obvious and age-old reasons. The ACLU is attempting an end run around this exemption by arguing that the District is discriminating based on ‘sexual orientation’ — also unlawful under the HRA — even if the HRA exempts the ‘sex’ discrimination. This is not a fair reading of the HRA because privacy facility restrictions are based on sex — whether you are a male or a female — not on your sexual orientation. If the ACLU’s argument is accepted by the court, that would have the effect of reading the privacy facility exemption out of the HRA. The legislature clearly did not have this intention; otherwise it would not have written the exemption in the first place.”

Students and Parents for Privacy and the Thomas More Society are requesting intervention in the lawsuit in order to protect the HRA exemption. Olp said, “We believe the State of Illinois, when it decided in 2005 to protect students with gender dysphoria from unfair discrimination, never intended to disturb its time-immemorial policy to allow sex-restricted bathrooms, shower facilities, and locker rooms. Since the HRA explicitly protects this position, the plaintiff should direct argument not to the court, but to the Legislature to seek a change in the HRA.”

Olp continued, “The ACLU’s argument, if accepted, would also ride roughshod over the legitimate privacy interests of the majority of students at the school to satisfy the desires of a tiny fraction of students suffering from gender dysphoria. This is unfair. Such students deserve our compassion and enjoy protection of the HRA, but that protection ends at the privacy facility door, we think. That is a proper accommodation of all students’ interests. It is ironic that while District 211 claims it has bent over backwards to accommodate the plaintiff, all it has earned for its effort is a lawsuit claiming that only totally unfettered access to privacy facilities will satisfy the plaintiff. This position goes too far, we believe, and should be resisted as being unreasonable, unfair to the common good of the school, and contrary to law. The HRA should be enforced as written.”

Read the “Verified Emergency Petition of Students and Parents for Privacy for Leave to Intervene as of Right or Alternatively by Permission, and Memorandum of Law in Support Thereof,” which includes a motion to dismiss, filed in Maday v. Township High School District 211 by the Thomas More Society on behalf of Students and Parents for Privacy on January 11, 2018, in the Circuit Court of Cook County, Illinois County Department – Chancery Division here

Read additional background on the federal Palatine school case here