School Toilets & Showers Based on Biology - Legal Opinion

Family First NZ has written to Marlborough Girls College and provided them with the legal opinion for schools released earlier this year that says they are not required under the law to have to allow transgender students access to shared toilets, showers and changing rooms, or allow transgender students to participate in sports teams that do not match their biological sex.

“Marlborough Girls’ College are in a difficult situation. We believe schools are being ‘bullied’ by government and advocacy groups into adopting ‘gender identity’ policies around uniforms, toilets, changing rooms, and sports teams. This legal opinion will give important information to Principals of schools, including Marlborough Girls’ College, who want to act in the best interests of the whole school community without fear of breaching the law,” says Bob McCoskrie, National Director of Family First NZ.

“The toilet issue is just the tip of the iceberg. What about the issues of changing for school sports, camp cabins, and participation in sports teams?”

The legal opinion examines the Education Act, Bill of Rights Act, Human Rights Act and case law, and says that limiting access to toilets and changing rooms based on sex has long been considered appropriate given the need to provide a safe physical and emotional environment for all students. Limiting participation in sports teams on the basis of sex has also been about providing a safe physical environment particularly in the contexts of sports that involve physical contact and a physical contest of strength.

The legal opinion says that such concerns are prescribed by the national educational guidelines and are legitimate concerns, and that it is “overly simplistic and incorrect to say that schools are required to give transgender students access to shared toilets, showers and changing rooms.” The opinion does however acknowledge that schools need to consider and address the needs of students with gender dysphoria in a reasonable manner.

“Schools have a duty to protect the privacy, safety, and dignity of all students. The agenda pushed by groups such as the Human Rights Commission, PPTA, AIDS Foundation and Rainbow Youth says that young people have a ‘right’ to use any toilet that matches their gender identity irrespective of their biological sex, but this fails to consider the welfare of the whole school environment.”

“Students have a fundamental right to bodily privacy. What should young girls who are uncomfortable or intimidated by the presence of a male in their bathroom or changing room do, particularly young girls who have been victims of sexual abuse? Is it safe for a young female student to be in an intimate facility with adolescent or older males? We have male and female changing rooms because of biology, not because of ‘gender identity’. Separate facilities reflect the fact that boys and girls have bodily differences; they are designed to protect privacy related to our bodies. Is it safe for a boy to be playing in the girls’ rugby team?” says Mr McCoskrie.

As well as the legal opinion, Family First has sent the school a suggested “Student Physical Privacy Policy” relating to toilets, changing rooms, and sports teams which schools can consider adopting when considering this issue in their own schools. The suggested policy says that schools must beboth respectful of the privacy concerns of all children and sensitive to the diverse needs of individual children, but that no child should be forced into an intimate setting – like a toilet block or a changing room – with another child of the opposite sex. The policy suggests that in special circumstances, the Principal may offer options for alternate facilities, which may be access to a single-stall toilet; access to a unisex toilet; or controlled use of a staff toilet, changing room, or shower.

“This is a common-sense and safe solution for school communities. Students with gender dissatisfaction must be given the very best support we can and handled with love and care, but ignoring biology is not a proper solution. To push the gender agenda in schools is a dangerous step to take,” says Mr McCoskrie.

READ the Legal Opinion.
READ the Student Physical Privacy Policy – Draft

Background Note:
In June 2015, Family First released a report “BOYS GIRLS OTHER – Making Sense of the Confusing New World of Gender Identity” which drew from decades of mainstream academic and international research, and sought to bring clarity to this topic and practical advice for schools, parents and community leaders, for the wellbeing of children.
DOWNLOAD THE REPORT HERE

ENDS

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