ACLU sues Mat-Su Borough School District over bathroom restrictions for transgender students

Today, the American Civil Liberties Union (ACLU) of Alaska filed litigation in Palmer District Court against the Matanuska-Susitna Borough School District (MSBSD) over its policy preventing transgender students from using bathrooms and locker rooms that match their gender identity, known as Board Policy 5134. The MSBSD board approved this policy in October 2022.

Ruth Botstein, Legal Director for the ACLU of Alaska, said in a video that their client is a transgender boy, who is identified as such by his parents and teachers, and despite this, is unable to use the boys’ restroom at school, causing mental and physical challenges, as well as distress placed upon him daily.

“The ACLU of Alaska is representing a set of parents bringing the case on behalf of their transgender son. Under this policy, 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 ACLU stated via a press release.

“This student just wants to be able to go to school like any other kid, and to focus on learning, socializing with his peers, and not have constant stress and anxiety about where and when he is allowed to use the bathroom and what might happen to him while he’s doing that.”

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

The lawsuit maintains that the school board policy 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 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 Ruth Botstein. "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."

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.

“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.”

When the policy was approved by a 5-1 vote in October, 2022, 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.”

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).”

Before the MSBSD altered its policy regarding restrooms, the board had approved eligibility restrictions that limit transgender students from participating in extracurricular school sports except on teams specific to boys or girls sports as determined by the athlete’s gender at birth.

This is the latest in a number of high profile lawsuits brought against the MSBSD over highly controversial policy changes the school board has made over the past year and half.

In November, the ACLU of Alaska, with the Northern Justice Project, filed a lawsuit against MSBSD for its unconstitutional removal of 56 book titles from district library shelves. Many of the removed book titles include LGBTQIA+ characters and queer protagonists. In January, the organizations filed a preliminary injunction to put the removed titles back on shelves; a court date has not been set.

“Mat Su School District, we’re going to see you in court.”

Jillian Morrissey, the Chief Communications Officer for the MSBSD said the District has not been served the complaint yet.

"Once the District receives service of the complaint, it will review the matter, file a timely answer, and provide comment as determined prudent."