Dad sues after school allegedly won't say if biological males can use daughter's bathroom
EXCLUSIVE: A North Carolina father is suing his children's school district after he says officials would not answer whether biological males could be permitted to use the same restrooms as his fourth-grade daughter.
Brandon Matthews, whose daughter attends Mount Pleasant Elementary School, and whose son is entering his senior year at Mount Pleasant High School, asked both principals in May to notify him if a member of the opposite biological sex was permitted to use bathrooms or locker rooms used by his children.
Matthews did not ask officials to identify any student, according to his federal lawsuit.
But Matthews still doesn't know the answer, his attorney says.
"Brandon Matthews does not currently know whether a male is using his fourth grade daughter's bathroom," Nicholas Barry, senior counsel at America First Legal Foundation, told Fox News Digital.
"And does he have a constitutional right to know that? We say 'yes,'" Barry said. "Without that information, he's just in the dark and... He really can't make any good decisions without that information."
Matthews' concerns over the district's bathroom practices predate the lawsuit.
At a May 11 school board meeting, Matthews appeared with his daughter and urged officials to keep boys and girls in separate bathrooms.
"Nobody's targeting a child," Matthews told the board. "All we're asking is that the bathrooms are accessible to each gender. If they want that, then create a new bathroom."
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Matthews then turned to his daughter and asked her to address the board.
"I'm personally a girl and I wouldn't want a boy following me in the girls' bathroom," she said. "It's inappropriate."
Matthews also used heated language during his remarks. He repeatedly warned officials that he could "get aggressive" and, while discussing protecting his daughter, said, "Anytime somebody touches this little girl, I'm gonna hang them from my garage."
Less than three weeks later, Matthews put his concerns in writing.
He asked his daughter's principal to notify him "in the event that any biological male is permitted to use the female restroom facilities" she uses. He made a similar request concerning his son's facilities.
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Both principals responded June 8, according to court filings.
The elementary school principal said that "[b]ecause matters involving individual students are confidential," the school "cannot confirm, disclose, or provide advance notice regarding the status, identity, or accommodations of any particular student."
The principal told Matthews that if he or his daughter became aware of a specific situation affecting her experience, they could contact the school to discuss his concerns. The high school principal sent a nearly identical response, according to the filing.
Barry argues that didn't answer Matthews' question.
"The explanation is fairly straightforward. They don't want to answer him," Barry told Fox News Digital. "Well, nobody asked for individual student information, so that's a non-answer," he added.
Matthews filed suit in the Middle District of North Carolina against the Cabarrus County Board of Education, Superintendent Dr. John Kopicki and the principals of his children's schools. America First Legal Foundation and co-counsel Philip Thomas are representing him.
On Friday, Matthews also sought a preliminary injunction asking the court to require the district to disclose its policies governing sex-separated bathrooms and locker rooms and whether members of the opposite sex are permitted to access, or have accessed, facilities used by his children.
Matthews, a practicing Christian, says in his sworn declaration that his religious beliefs include that sex is immutable and that his children should not be expected to undress or use restrooms in the presence of members of the opposite sex.
The lawsuit does not allege that Matthews knows a biological male has used his daughter's bathroom. His attorneys argue that he cannot determine whether it has happened or is permitted to happen.
Matthews said in a sworn declaration that he has been unable to locate a written, publicly available policy explaining when students at either of his children's schools may be expected to share restrooms or changing facilities with members of the opposite sex.
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At an April 13 school board meeting, School Board attorney William Isenhour said "the district addresses the [bathroom and locker room] situation at each school on a case-by-case basis with the goal of addressing concerns of all students and their families," according to court filings.
Fox News Digital sent Cabarrus County Schools detailed questions about the allegations, the district's bathroom policies, whether parents receive advance notice and its response to the lawsuit.
Matthews says he ultimately seeks advance notice and a meaningful opportunity to opt his children out before they are expected or required to use intimate facilities in the presence of a member of the opposite sex. His preliminary-injunction motion asks the court, while the case proceeds, to require the district to disclose its policies and whether opposite-sex individuals are permitted to access, or have accessed, facilities used by his children.
It also seeks notice when a member of the opposite sex "has been authorized to enter, or is expected to enter" a facility used by their child.
Barry told Fox News Digital that a victory could have implications beyond Cabarrus County.
"Yes, I think if we continue to push Mahmood forward, and we start getting wins on it, schools around the country are going to have to start disclosing to parents what their policies are and providing parents the opportunity to opt out," Barry said.
"I do think as Mahmoud percolates out and as cases like this get decided, it's going to require that school districts provide notice and an opportunity to opt out to parents on this specific issue."
That is Barry's interpretation of what a victory could require. The court has not yet ruled on Matthews' claims.
Matthews' attorneys rely heavily on the Supreme Court's decision in Mahmoud v. Taylor, which involved parents seeking notice and an opportunity to opt their children out of certain LGBT classroom instruction on religious grounds.
AFL argues that if parents are entitled to notice in that context, the same principle should apply to children sharing bathrooms, locker rooms or changing facilities with members of the opposite sex.
Matthews alleges the district violated his rights under the Free Exercise Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment.
The case is America First Legal's second lawsuit against Cabarrus County Schools over sex-separated facilities.
Its first lawsuit alleges female students at Cox Mill High School were required to share girls' restrooms, locker rooms and changing spaces with a biological male.
Those allegations are separate from Matthews' case and do not establish that a biological male has used the restroom at his daughter's elementary school.
Barry drew the same distinction in his interview with Fox News Digital.
"The first lawsuit we filed, there are allegations that a male is using our three client females' restroom and locker rooms and changing spaces," Barry said. "Which is different than what we're doing here. Here, it's a straightforward attack on Cabarrus County Schools policy to get information about it and to know whether it's impacting our clients' daughter and son at school right now."
Matthews' attorneys also stressed in their preliminary-injunction motion that he is seeking information and notice, not an order barring another student from a particular facility.
"Plaintiff seeks only notice and information—he does not seek to prevent any student from using any facility," they wrote.
Cabarrus County Schools did not immediately respond to Fox News Digital's request for comment.