ACLU files injunction to restore bathroom restrictions for transgender students

On Wednesday, September 4, the American Civil Liberties Union (ACLU) of Alaska filed a motion for preliminary injunction in X.A. v. Mat-Su Borough School District (MSBSD) to restore the rights of transgender students to use the bathroom that matches their gender identity while the case is ongoing.

The injunction stems from a lawsuit filed this in January. The ACLU, representing a set of parents bringing the case on behalf of their transgender son, says that under MSBSD Policy 5134 BP, every day, their child faces mental and physical challenges because he is denied access to the boys’ bathrooms, even though he is a boy.

“The student has started another year of school with his constitutional rights to privacy and equal protection under the law being violated by the Mat-Su Borough School District,” said Ruth Botstein, Legal Director for the ACLU of Alaska. “We’re seeking a preliminary injunction so that he doesn’t have to continue to be singled out from his classmates, outed as transgender against his will, and miss valuable classroom learning time while the merits of this case are being reviewed by the courts.”

Botstein was referring to BP 5134, states that the use of restrooms and changing areas are to be restricted to the exclusive use of students’ biological sex as identified at the time of birth, thus preventing transgender students from using bathrooms and locker rooms that match their gender identity. The policy was approved by the school board in October 2022 by a 5-1 vote.

When the policy was approved, then MSBSD school board member Dwight Probasco offered an amendment to the policy that would have included adding “gender neutral bathrooms” in the language.

“A reasonable accommodation shall be accessed to single-occupancy ‘or gender neutral restroom or changing room,’” Probasco said at the time, but did not receive a second and the motion did not advance.

“I believe that a person’s gender identity they should be allowed to use the bathroom or changing room of the gender they identify with,” he said, adding, “All students should be treated with compassion, privacy, dignity, and fair and positive outcomes. I do believe this policy is built on sand, and I do not believe it will stand the test of time.”

"The MSBSD has forgotten its obligation to protect young people, as well as the constitutional rights that all students – regardless of their gender identity – are entitled to," said Botstein at the time. "The student just wants to be able to go to school like any other kid, to focus on learning and socializing with his peers, and not have constant stress and anxiety about where and when he is going to be able to use the bathroom."

“In order to achieve an effective learning and work environment, it is important to create clear and consistent policy in every building and facility in the District.”

A provision in the board policy does allow for exceptions when possible:

“Each Mat-Su Borough School District building shall provide a reasonable accommodation to any individual who does not wish to comply with the provisions…A reasonable accommodation shall be access to a single-occupancy restroom or changing room (such as a nurse’s office or family restroom).”

The ACLU says that BP 5134 infringes on the student's constitutional right to privacy because it violates his fundamental right to make his own choices about his body, his name, his gender identity, and the appropriate bathroom for him to use. The family and ACLU also say the policy violates the Equal Protection Clause of the Alaska Constitution as it treats transgender students differently than other students.

The parents and student would like to remain anonymous. The school name has also been redacted to maintain the student’s anonymity.