The many ways Alliance Defending Freedom is fighting against transgender student equality
Anti-LGBTQ hate group ADF is leading an insidious, nationwide fight against transgender students' access to restroom facilities that align with their gender identity
Research ››› ››› REBECCA DAMANTE & BRENNAN SUEN
For years, anti-LGBTQ hate group Alliance Defending Freedom (ADF) has led a national crusade to block transgender students’ access to school restroom and locker room facilities that align with their gender identity. Media Matters takes a look at ADF’s insidious attacks on transgender student equality over the last year.
Alliance Defending Freedom (ADF) is the largest anti-LGBTQ hate group in the nation and received more than $50 million in donations and grants in 2015. The group is representing plaintiff Jack Phillips in the upcoming Masterpiece Cakeshop v. Colorado Civil Rights Commission Supreme Court case. The case, which involves a Christian baker who refused service to a gay couple, may determine whether businesses serving the public have the right to discriminate against LGBTQ people under the guise of “religious” or “artistic freedom.”
According to the American Civil Liberties Union, 38 anti-transgender bills have been introduced or been active in 2017 in states across the country, 28 of which involved “single-sex facility restrictions” and specifically targeted public schools or government buildings (which include public schools). Nearly all of those bills are now dead. Media Matters and Rewire’s legislative tracker determined that 10 of the 28 anti-trans “bathroom bills” had language resembling ADF’s policy.
Media Matters analyzed how ADF has impacted policies affecting transgender students over the past year. Due to a lack of transparency surrounding many of ADF’s activities, the following list is not comprehensive. Additionally, many of ADF’s 3,200-plus reported allied attorneys do not publicly identify their affiliation with the hate group, complicating efforts to identify their work in promoting anti-trans policies across the country. Here are five different ways that we have found ADF attempting to force anti-trans policies across the country:
ADF’s model policy, which it sent “to public school districts nationwide” in August intending to affect the 2017-2018 school year, requires that transgender students use “restrooms, locker rooms, showers, similar school facilities, and school-related overnight accommodations” that match the “sex as listed on the person’s original birth certificate.” At least eight states have proposed policies mirroring ADF’s over the last year. Other versions of ADF’s policy have placed a $2,500 fine, paid by the public school, as a penalty “for each instance in which [students] encountered a person of the opposite sex while accessing a public school” facility. The schools could also be responsible for “monetary damages” from alleged “psychological, emotional, and physical harm suffered” by a student who encounters a transgender student in a restroom. In 2016, Kansas unsuccessfully proposed a pair of bills with the same bounty.
In fact, it is transgender people who are at increased risk of suffering physical and emotional harm in public restrooms, and “almost 60 percent of transgender Americans have avoided using public restrooms for fear of confrontation, saying they have been harassed and assaulted,” according to Reuters and the National Center for Transgender Equality. Additionally, Media Matters last year interviewed experts and government officials across the country and school administrators in dozens of school districts and universities and none had found any examples of sexual assault or harassment stemming from trans-inclusive restroom policies.
2. ADF and allies submitted briefs and filed lawsuits seeking to prevent trans students from using the restrooms that align with their gender identity
On November 13, ADF-allied attorney Herbert Grey, who was given an award by ADF in 2009 for his pro bono work, filed a lawsuit against the state of Oregon, the United States, and Dallas School District No. 2 over the school district’s trans-inclusive policy on gender identity.
In March, ADF sued the school district of Boyertown, PA, for allegedly violating the “privacy” of a cisgender boy because the school had a trans-inclusive locker room policy.
On August 11, attorneys from ADF and the Independence Law Center argued in court on behalf of students and parents who sued the Boyertown Area School District during its 2016-17 school year.
On September 25, ADF and Independence Law Center attorneys filed a notice of appeal after a federal district court ruled against ADF’s clients who sued the Boyertown Area School District for its trans-inclusive policy.
On May 15, ADF filed a friend-of-the-court brief supporting the Gloucester County School Board in Virginia after transgender student Gavin Grimm sued the board over its so-called “privacy” policy. ADF’s press release referred to Grimm as “a female high school student who perceives herself to be a boy.”
On December 19, 2016, ADF filed a friend-of-the-court brief supporting the Kenosha Unified School District in Wisconsin after a transgender student sued the district because his high school declined to allow him to use the boys’ restroom. ADF’s press release referred to the transgender student as “a teenage girl who perceives herself to be a boy.”
On September 27, ADF filed an amicus brief supporting Kenosha Unified School District’s discriminatory anti-transgender policy. The district filed a petition asking the Supreme Court to weigh in after the 7th Circuit Court of Appeals ruled against the district. The Supreme Court has not yet weighed in.
3. ADF sent letters to schools that often included veiled legal threats and otherwise advocated for anti-trans school policies
ADF “backed” an unsuccessful “model parental rights” policy put forward to the board of the Rocklin Academy charter school network in California after a kindergarten teacher read two children's books about gender identity to her students, one of whom is transgender, in August. Fox News reported that ADF was “investigating” the issue.
On August 14, ADF sent a letter urging the Grass Lake School Board in Michigan to reverse a trans-inclusive policy, saying the policy opens “the school district to a risk of litigation.”
On August 3, ADF sent a letter to all school districts in Minnesota warning them not to adopt trans-inclusive state department of education guidelines for “Ensuring Safe and Supportive Schools for Transgender and Gender Nonconforming Students.” The letter included ADF’s model policy and asserted that adopting the trans-inclusive policy would open “the door to litigation.”
In January, ADF sent a letter to the school district of Egg Harbor Township in New Jersey saying that it was ready to “litigate if necessary” regarding a proposed transgender-inclusive policy.
According to Lambda Legal, ADF sent letters or emails in 2016 requesting that the Pine-Richland School District in Pennsylvania implement a discriminatory policy preventing transgender students from using the restrooms that align with their gender identity. The district had a “longstanding” trans-inclusive policy, according to Metro Weekly, which also noted ADF’s involvement.
On June 20, ADF sent a letter to Prince William County Public Schools in Virginia asking that “pro-student-privacy speakers” be allowed to “participate equally” in a school board meeting regarding a proposed trans-inclusive policy in the district. The board approved the LGBTQ nondiscrimination protections the following day.
Between September and October, two ADF-allied attorneys testified at a City Schools of Decatur board of education meeting in Georgia against its trans-inclusive policy, according to The Champion, which described the two as part of “a small group of people—some of whom are not residents of Decatur or DeKalb County—” opposing the policy. ADF-allied attorneys Garland Hunt and Dave Baker (who is also the executive director of Faith and Freedom Coalition of Georgia) both testified.
ADF legal counsel Douglas Wardlow testified against a transgender-inclusive policy at an Anoka-Hennepin School Board meeting in Minnesota on March 20. Prior to his testimony, Wardlow sent a letter to the school board in which he cited discredited anti-LGBTQ junk science researchers Mark Regnerus and Paul McHugh to support his claim that protecting transgender students from discrimination isn’t supported by medical experts (it is). This “research” included a widely denounced report by McHugh attacking transgender people that was published in a journal -- The New Atlantis -- that is not “subject to rigorous peer review” as scientific research usually is. The New Atlantis is published in part by the Ethics and Public Policy Center, which is dedicated to “applying the Judeo-Christian moral tradition to critical issues of public policy.”
In November 2016, ADF-allied attorney Josh Bodene testified at a Selinsgrove, PA, school board meeting. During his testimony, Bodene announced that he was “an allied attorney with the Alliance Defending Freedom” and that he was asked to speak by the Independence Law Center, a right-wing legal group that has worked with ADF on another anti-trans case in Pennsylvania. ADF-allied attorney Jeremy Samek, who argued against Boyertown Area School District’s trans-inclusive policy, also opposed the bill in local news.
5. Policies proposed in the 2017 legislative sessions in at least 8 states, along with at multiple schools, resemble ADF’s model policy or were written by ADF
The Arkansas state Senate on March 6 proposed SB 774, the Arkansas Physical Privacy And Safety Act, an anti-trans bathroom bill that applied to “public schools, colleges, and government buildings” in the state. Upon comparison, it appears that the legislation, which failed to pass, is nearly identical to ADF’s model policy.
In October 2016, ADF authored a discriminatory policy introduced to the Morton School Board in Illinois that would have prevented transgender students from using the restrooms that align with their gender identity, according to the East-Peoria Times-Courier and Journal Star. The board voted against adopting the policy.
Kansas state House Rep. John Whitmer on January 26 introduced HB 2171, an anti-trans bathroom bill that would designate public school restroom facilities “for use by male students only or female students only.” Rewire reported that the bill was “based on model legislation drafted by” ADF. According to the National Conference of State Legislatures (NCSL), the bill is pending and will be carried over to 2018 for further consideration.
On February 25, the Kansas Senate proposed SB 206, an anti-trans bathroom bill that would affect public school districts in the state. According to Rewire, the bill was “based on model legislation drafted by” ADF and was similar to two previously failed bills in the state, HB 2737 and SB 513, which were also based on ADF language. According to NCSL, the bill is pending and will be carried over to 2018 for further consideration.
The Kentucky House on January 5 proposed HB 141, the Kentucky Student Privacy Act, an anti-transgender bathroom bill that would have applied to “school restrooms, locker rooms, and showers.” According to Rewire, the bill, which failed, was similar to Kentucky’s 2016 HB 364 and was also “based on model legislation drafted by” ADF.
On January 5, the Minnesota House of Representatives proposed the Minnesota Student Physical Privacy Act (HF 41), an anti-transgender bathroom bill. According to Rewire, the bill was based on ADF’s model legislation and is similar to the state’s HF 1546, which failed in 2016 and was also based on ADF’s model legislation. NCSL reports that the bill is pending and will be carried over to 2018.
The Missouri Senate on January 4 proposed SB 98, an anti-transgender bathroom bill that would have applied to “school restrooms, locker rooms, and shower rooms,” according to Rewire. According to NCSL, the bill failed. Upon comparison, it is clear the bill borrows language from ADF’s model policy.
On January 25, the Missouri House of Representatives filed HB 745, an anti-transgender bathroom bill that would have applied to school “restrooms, locker rooms, and shower rooms.” The bill is identical to Missouri’s SB 98, and both borrow language from ADF’s model policy. HB 745 did not pass, according to Rewire.
In May 2016, the Montana Family Foundation, which counts ADF as one of its “partners,” submitted a proposal for Initiative 183, a “proposed 2018 ballot initiative that would force transgender people to use only those restrooms or locker rooms that match their biological sex as listed on their original birth certificate,” according to Metro Weekly. According to U.S. News, supporters of the initiative “have until June  to gather the nearly 26,000 signatures needed” to get it on the ballot, but the ACLU of Montana already filed a lawsuit in October challenging its constitutionality. The bill’s definition of “sex” mirrors the definition in ADF’s model policy nearly word for word.
On March 17, the Montana House of Representatives introduced anti-trans bathroom bill HB 609, the so-called Montana Locker Room Privacy Act. The bill is nearly identical to Montana’s anti-trans ballot initiative, Initiative 183, whose definition of sex matches the definition in ADF’s model policy almost word for word. The bill died in standing committee on April 28.
On January 25, the South Dakota Senate proposed SB 115, an anti-transgender bathroom bill that would apply to “public school locker rooms, shower rooms, and changing facilities by restricting certain access.” According to Rewire, the bill was “based on model legislation drafted by” ADF. The bill was withdrawn by its sponsor six days after it was proposed.
Images by Sarah Wasko.