Abstract
For thousands of years, bathrooms have been separated by sex—male and female. In fact, for most of human history, there has been a universal understanding that only male and female sexes existed. It was not until the twentieth century that the notion that there could be more than two sexes was popularized and the term “transgender” was introduced to society. By the mid-2010s, the idea that bathrooms should be separated by male and female began to receive opposition. As explored throughout this Comment, children identifying as transgender have filed lawsuits against school boards that did not permit children to use the bathroom that aligns with their gender identity—what has become known as “gender-affirming bathroom access.” These children claim that school board policies denying gender-affirming bathroom access violate the Equal Protection Clause of the Fourteenth Amendment. This issue has quickly turned into a circuit split and is one of the most hotly contested issues in America.
But why is the issue of gender-affirming bathroom access so contentious? The answer is simple—but not easy: this issue is divided along irreconcilable differences of worldview. There is one side of the issue that says people may be a different gender than the one corresponding to their biological sex. In turn, because the person is a different gender than the one that aligns with his or her biological sex, that individual should be able to use the bathroom that conforms with the person’s gender identity. On the flip side, there is the group of people who believe that one cannot change his or her gender, and whichever sex the person is born with is permanent. This group of people maintains the belief that everyone should use the bathroom that conforms to his or her biological sex. Most people in this latter group believe that there are only two genders because God created only male and female, His creation is inerrant, and every person is made in God’s image.
Because the author believes that God does not make any mistakes and that there are only two genders, this Comment will detail why the Equal Protection Clause of the Fourteenth Amendment does not require genderaffirming bathroom access. This Comment then proposes two solutions for school board policies to enact that would align with both a biblical worldview and the Constitution of the United States. Ultimately, this Comment focuses on the value of all children, including those who identify as transgender. Every single man, woman, and child is fearfully and wonderfully made. Everyone is made in the image of God. The gender-affirming bathroom access issue is important, but being right is not more important than the soul of a fellow human being.
Recommended Citation
Nast, Stephen J.
(2024)
"Read the Sign: The Equal Protection Clause Does Not Require Gender-Affirming Bathroom Access in Schools,"
Liberty University Law Review: Vol. 19:
Iss.
1, Article 6.
Available at:
https://digitalcommons.liberty.edu/lu_law_review/vol19/iss1/6