Student Physical Privacy and Anti-Bullying

Dec 11, 2015 by

Transgender bathrooms

Henry W. Burke covered the following report during the Nebraska State Board of Education Meeting on December 4, 2015.  Mr. Burke’s testimony began at Time Mark 27:40 and ended at 32:50.  Also three people addressed Comprehensive Sex Education, beginning at 3:40 and ending at 18:40.  This is the link (URL) to the Video Archives for the Board Meeting:

Student Physical Privacy and Anti-Bullying

By Henry W. Burke



Nebraska schools are examining their restroom and locker room policies in light of several recent developments.


Should transgender students be permitted to use a restroom or locker room designated for the opposite sex?


What are the practical implications and legal requirements on restrooms and locker rooms?


How can the Nebraska Policy on Anti-Bullying be improved?





The Nebraska School Activities Association (NSAA) launched an effort earlier this year to establish a statewide policy on sports participation by transgender students.  Presumably, the NSAA will decide if it will retain its current policy, which dictates that students participate in sports based on the gender listed on their birth certificate at birth.


In October, Superintendent Frank Harwood of Bellevue Public Schools adopted a policy on transgender students without a vote of the School Board.  During its November Board Meeting, the Bellevue Board of Education decided to retain the revised policy on transgender students. 

The 10.5.15 revision of the Bellevue Public Schools Administrative Regulation Code 511R states the following under Restroom Accessibility:

          Students shall have access to a restroom that corresponds to their gender identity. A student shall not be required to use a restroom that is incongruent with the student’s gender identity.


Under Locker Room Accessibility, Bellevue Code 511R states:

          A student shall not be required to use a locker room that is incongruent with the student’s gender identity.




Needless to say, the ACLU applauds the new Bellevue policy even though the policy imposes a potential invasion of privacy on most students.




On November 9, 2015, Alliance Defending Freedom (ADF) sent a letter to the Bellevue Public Schools, the Nebraska School Activities Association (NSAA), and all school districts within Nebraska. 

The Press Release for the Letter (and embedded links to the Letters) are given here:


Nebraska School Activities Association


all school districts within the state


The letter begins with these statements:

          It is our understanding that you are currently considering a policy that would govern whether a transgender student is permitted to use the restroom, locker rooms, and other facilities designated for the opposite sex.  Unfortunately, there is much misinformation on this important issue that implicates the privacy and safety of all students under your care.  Some are under the mistaken impression that federal law requires school districts to banish sex-specific facilities.

          In fact, just the opposite is true.  The information that follows will establish that:

                   (1)  no federal law requires public schools to open sex-specific restrooms, showers, and changing areas to opposite-sex students,

                   (2)  providing such access violates the fundamental rights of the vast majority of students and parents, and

                   (3)  schools have broad discretion to regulate the use of school restrooms, showers, and changing areas.

          In an effort to assist school districts, Alliance Defending Freedom has drafted a model Student Physical Privacy Policy that can be adopted or used as a resource either when drafting policies, or when handling specific situations, impacting this important area.  That model policy is attached after the conclusion of this letter.


The Alliance Defending Freedom (ADF) Letter provides very thorough legal documentation for each of the above three points.  To support the three statements listed above, ADF cites numerous laws and court cases.  


The Letter makes these declarations in the Conclusion:


          Allowing students to use opposite-sex restrooms and locker rooms would seriously endanger students’ privacy and safety, undermine parental authority, violate religious students’ free exercise rights, and severely impair an environment conducive to learning.  These dangers are so obvious that a school district allowing such activity would clearly expose itself to tort liability.  Consequently, school districts should reject policies that force students to share restrooms and locker rooms with members of the opposite sex.


The Conclusion even makes this amazing offer:


          If a district adopts our model policy and it is challenged in court, Alliance Defending Freedom will review the facts and, if appropriate, offer to defend that district free of charge.


The ADF Letter was signed by Jeremy D. Tedesco, Senior Legal Counsel and J. Matthew Sharp, Legal Counsel.


The Letter also includes a one-page “Student Physical Privacy Policy.”  I urge the State Board of Education, Nebraska Department of Education, and Nebraska school districts to adopt this model policy.





As a separate Attachment, Alliance Defending Freedom enclosed the document “Dispelling Myths About Distinct Restrooms for Boys and Girls.”  Key statements are included below:


          MYTH NO. 1: Title IX, a federal statute that prohibits sex discrimination by schools that receive federal funds, requires opening restrooms and changing rooms to all students regardless of their sex.


          FACT:  Title IX does not require schools to eliminate distinct facilities for boys and girls.



          MYTH NO. 2:  The U.S. Department of Education issued a “significant guidance document” in April 2014 regarding Title IX that requires schools to allow students struggling with sexual identity to use restrooms and changing rooms of their choice.


          FACT:  This document does not mention access to restrooms.  And it does not change binding Title IX regulations authorizing schools to create “separate toilet, locker room, and shower facilities on the basis of sex.”



          MYTH NO. 3:  Schools desiring to maintain distinct facilities for boys and girls must prove that it is absolutely necessary to designate restrooms, locker rooms and showers by sex.


          FACT:  For sensible and obvious privacy and safety reasons, our society has always required single-sex access to restrooms, locker rooms and showers.



          MYTH NO. 4:  Schools cannot deny transgender students equal access to the restroom or locker room of their choice.


          FACT:  Transgender students currently have equal access to school facilities based on their sex.  The fact that a few students struggle with sexual identity issues is not a reason to make sex completely irrelevant to the use of school facilities.



          MYTH NO. 5:  Denying a transgender student access to the restroom consistent with his or her gender identity harms the student.


          FACT:  Forcing students, including vulnerable elementary school children, to use the restroom with members of the opposite sex harms all students by violating their right to privacy and making them participate in situations that most adults would object to if it was imposed upon them.



          MYTH NO. 6:  Failing to provide a transgender student access to the restroom consistent with his or her gender identity exposes him or her to ridicule and bullying by other students.


          FACT:  School officials should protect all students, including those struggling with gender confusion, from bullying.  If any student is being bullied for any reason, he or she should report it to school authorities who can investigate and take any remedial action necessary.  In fact, allowing a transgender student to use the restroom consistent with his or her gender identity will likely increase the chances that the student is exposed to ridicule and bullying, not lessen them.





The Nebraska Department of Education (NDE) and State Board of Education (SBOE) are considering a revision to the State Board Policy on “Anti-Bullying.”  The December Board Meeting Agenda lists:


          7.1. Approve proposed revisions to STATE BOARD POLICY G11, “Anti-Bullying”


            DRAFT_G11 antibull 2015


Nebraska has made a good start, but the NDE and SBOE should add the material in the next Section to the Policy.





On 8.12.15, education expert Donna Garner was one of the guests on the Alice Linahan – Women on the Wall Program.


Beginning at 1:03:25, Donna Garner explained the desirable attributes of a State Policy on Anti-Bullying.  Mrs. Garner also listed the Positive Personal Character Traits.  Her segment ends at 1:07:45.

Donna Garner’s 8.16.15 e-mail message includes the following information (direct quote):

Donna Garner presented a suggested anti-discrimination policy that schools should adopt and a list of positive, personal character traits that teachers need to weave into their policies and curriculum to help all students develop into mature adults who are a blessing to those around them.


“Each district’s anti-bullying policy shall be founded on the assumption that all students need a safe learning environment. Policies shall treat students equally and shall not contain specific lists of protected classes of students who are to receive special treatment. Policies may include age-appropriate differences for schools based on the grade levels at the school. Each such policy shall contain a statement of the consequences of bullying [including] cyberbullying, e-mails as acts of bullying, intimidation and harassment.”

Schools should work these Positive Personal Character Traits into their policy statements:

“List of Positive Personal Character Traits”
By Donna Garner

[2.17.15 – This is a list of positive personal character traits that I helped to develop while working for Scott & White Worth the Wait abstinence-education program. Permission has been granted by S&W to share this widely with any and all. These are the character traits that parents, teachers, communities, religious institutions, etc. need to emphasize intentionally as they work with children to help them develop into mature adults who are a blessing to those around them. – Donna Garner]

· Accepts personal responsibility, does not make excuses
· Admits her/his mistakes
· Associates with positive people
· Avoids gossip
· Avoids negative influences
· Controls his/her temper
· Does not make fun of or pick on others
· Does not manipulate others
· Does not whine, complain, or argue
· Does the right thing
· Encourages others
· Enjoys challenges
· Exhibits self-control
· Gets along well with others
· Is a faithful and true friend
· Is assertive
· Is cautious
· Is cooperative
· Is flexible
· Is happy and content
· Is honest, does not lie or cheat
· Is humble
· Is kind
· Is not argumentative
· Is not jealous or envious
· Is not loud and crude
· Is patient
· Is polite
· Is punctual
· Is sincere
· Is willing to learn
· Keeps promises
· Listens to and respects others
· Obeys the rules
· Plans ahead, does not procrastinate
· Shares with others, not selfish
· Shows empathy for others
· Shows good judgment and common sense
· Strives for excellence
· Takes advice humbly
· Takes constructive criticism well and learns from it
· Thinks before speaking or acting
· Tries to be a peacemaker
· Values his/her family
· Works hard



4.24.12 — “Paul Coughlin: Bully-proof Your Kids” – by CBN

 11.5.15 — “Perverted Ruling by Obama’s USDOE” – by Donna Garner

4.21.15 – “1,000 Iowa Students’ Minds Violated Forever” – by Donna Garner – (including article written by Todd Starnes –“Teens Shocked by Graphic Content at Anti-Bullying Conference” – 4.18.15) —

4.21.15 – “Governor’s Conference on LGBTQ Youth Not What You Think” – The Family Leader

4.20.15 – “School in Kittering, Maine, Under Fire for Transgender Kindergarten Lesson” – by Victor Skinner – EAGnews.org

3.6.15 –  “Teacher Suspended After Reading Graphic Gay Sex Poem to Class” — by Dr. Susan Berry – Breitbart

10.3.12 – “Adults Must Protect Our Country’s Children” – by Donna Garner –




The Bellevue Public Schools took the wrong path when they revised their policy to permit transgender students to use restrooms and locker rooms designated for the opposite sex.


Alliance Defending Freedom wrote a letter to the Bellevue Public Schools and the Nebraska School Activities Association (NSAA), which detailed the practical and legal implications of restroom use by the opposite sex.


I strongly recommend that Bellevue and NSAA follow the recommendations contained in the Alliance Defending Freedom (ADF) Letter.


ADF also wrote an excellent “Student Physical Privacy Policy.”  The Nebraska State Board of Education and the Nebraska schools would be well served by adopting this policy.


Alliance Defending Freedom carefully dispelled six myths surrounding distinct restrooms for boys and girls.


Because bullying is a real problem in the schools, the State Board of Education and the Nebraska school districts should take a proactive approach on Anti-Bullying Policy. 


Positive Personal Character Traits should be taught and promoted in Nebraska’s schools to lessen bullying activities.



Bio for Henry W. Burke

Henry Burke is a Civil Engineer with a B.S.C.E. and M.S.C.E.  He has been a Registered Professional Engineer (P.E.) for 37 years and has worked as a Civil Engineer in construction for over 40 years. 

Mr. Burke had a successful 27-year career with a large construction company. 

Henry Burke serves as a full-time volunteer to oversee various construction projects. He has written numerous articles on education, engineering, construction, politics, taxes, and the economy.

Henry W. Burke


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