The Alaska Supreme Court is now hearing oral arguments in the case of X.A. v. Mat-Su Borough School District in which an elementary-age child’s parents are suing the Matanuska-Susitna Borough School District for maintaining a policy that prevents their child from using the opposite sex’s bathroom, but instead provides a single-use, gender-neutral bathroom. The child, known as X.A. in legal documents, is a girl who has been led to believe she is a boy because she does not like stereotypically feminine things.
The school district’s policy reserves multi-occupancy/communal bathrooms for students of the corresponding biological sex but provides a single-occupancy restroom to any student who does not want to use the communal restroom. X.A.’s parents sued because the policy does not allow their child to use the boys’ communal bathroom. After a four-day trial, the superior court upheld the policy, finding that it did not violate X.A.’s privacy or autonomy rights and that protecting students’ privacy in bathrooms was an important governmental interest. Now, the parents are appealing to the Supreme Court.
The ACLU, representing X.A., argues that the policy violates equal protection, privacy, and personal autonomy. They argue that the policy violates equal protection because biological boys may use the boys’ bathroom, but biological girls that identify as boys may not. It also argues that excluding a transgender student from the bathroom corresponding to his gender identity constitutes sex discrimination. From there come the harder constitutional questions: Is transgender status a protected or suspect classification? Is this sex discrimination? Does strict scrutiny apply under Alaska’s unusually protective Constitution? And how should cases like Bostock apply outside the employment context?
The School District argues that the policy is constitutional because it applies equally to everyone, protects the privacy of children in intimate spaces, and provides a readily available alternative. The Superior Court agreed. The District also argues that intermediate—not strict—scrutiny applies and that the policy easily satisfies it.
The State of Alaska, through Solicitor General Jenna Lorence, filed an amicus brief in April supporting the School District. The State’s brief does something important: it gives the Alaska Supreme Court a narrow way to decide the case without weighing in on the most controversial constitutional questions.
The State says to start with the actual policy. It does not divide students into “transgender” and “non-transgender” groups. It does not ask anyone’s gender identity. It simply provides a boys’ communal bathroom, a girls’ communal bathroom, and a universal alternative: any individual may use a single-occupancy restroom, for any reason and without explanation.
That matters because equal protection ordinarily begins with a threshold question: are similarly situated people being treated differently? The State’s answer is no. Biological boys, however they identify, are subject to the same rule. Biological girls, however they identify, are subject to the same rule. And everyone has exactly the same option to use a single-occupancy bathroom.
The same logic answers the sex-discrimination argument. Drawing on the U.S. Supreme Court’s recent decision in Skrmetti, the State explains that a rule does not discriminate based on sex merely because it references sex. The question is whether it gives one sex a benefit or imposes a burden that it does not impose on the other. The policy does neither.
That also lets the Court avoid deciding how far Bostock extends. Bostock interpreted Title VII’s employment-discrimination language and expressly declined to decide questions involving bathrooms and locker rooms. The State argues there is no reason to transform that employment case into a broad rule of Alaska constitutional law in this case.
A ruling in favor of the school district would not force a largely liberal-minded Court to conclude transgender people lack constitutional protection. It also would not force the Court to decide that transgender status can never be a suspect classification. Nor would the Court have to announce a broad rule about gender identity, Bostock, or the level of scrutiny applicable in some future case involving actual differential treatment.
The Court can say something considerably narrower: whatever constitutional protections transgender Alaskans possess, this particular policy treats everyone according to the same rule and gives everyone the same alternative. Therefore, this particular policy does not deny equal protection.
If the Court reaches heightened scrutiny, the State argues that the policy survives it. Protecting children’s privacy in bathrooms is concededly important—indeed compelling—and the policy preserves sex-specific communal spaces while providing a private alternative to anyone who wants one.
The State’s brief does not ask the Alaska Supreme Court to resolve a culture war. It gives the Court a way to affirm the School District on conventional, narrow constitutional grounds, and leave the harder questions for a case that actually requires them. The State argues that the Court should avoid writing a sweeping opinion that could have consequences far beyond school bathrooms.
August 6 Oral Arguments
Watch the oral arguments in X.A. v. Mat-Su Borough School District here: https://www.ktoo.org/gavel/video/?clientID=2147483647&eventID=2026081007
