Transgender is the latest RFRA arena

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Mascot of Fremd High School in suburban Chicago, where a transgender student was permitted to use the girls' locker room earlier this year.

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Mascot of Fremd High School in suburban Chicago, where a transgender student was permitted to use the girls' locker room earlier this year.

Religion is not mentioned in the lawsuit filed by 11 states this week against the Obama administration’s transgender bathroom guidance. Defenders of traditional values that they are, Texas et al. are not yet claiming to possess religious rights that the feds may not violate.

But that doesn’t mean that religious liberty isn’t at issue in the Great Transgender Struggle. To the contrary, it’s being invoked in a new case involving a transgender student at Fremd High School in suburban Chicago who has been permitted to use the girls’ bathroom and locker room.

Permission came about after the U.S. Department of Education ordered Palatine-Schaumburg High School District 211 to give the student access under Title IX of federal education law. A month ago a lawsuit was filed against the new policy by a group calling itself Students and Parents for Privacy, which is being represented by the Alliance for Freedom and the Thomas More Society.

The suit goes the full monty on religious liberty, claiming that allowing students to use the bathrooms and locker rooms of “their perceived gender identity” violates Illinois’ Religious Freedom Restoration Act (RFRA), the federal RFRA, and the First Amendment’s Free Exercise Clause. In each case, the alleged violation of religious liberty is the same:

Many of the Student Plaintiffs have a religious requirement that they practice modesty. These students have the sincere religious belief that they must not undress, or use the restroom, in the presence of the opposite biological sex, and also that they must not be in the presence of the opposite biological sex while the opposite biological sex is undressing or using the restroom.

In response to the lawsuit, several transgender students in the district, represented by the ACLU, are now seeking to become parties in the case. Among other things, they want to be able to address the plaintiffs’ religious claims, “as to which there is no reason to believe Federal Defendants’ views mirror those of Movants, or that Federal Defendants will adequately represent Movants’ interests in areas far beyond ED’s core expertise.”

In other words, what we’re faced with is another national test case the seeks to resolve the competing claims of religious freedom and gender equity. There’s no question that modesty is religiously obligatory in various religious traditions — though how far such obligations need to be accommodated in public facilities is far from clear. Accommodating transgender identity presents its own conundrums.

Sooner or later, the Supreme Court is going to have to grab the chalk and draw some lines.