Role of Schools in Transgender Bathroom Laws
The practice of family law often intersects with the LGBTQ community, from adoptions to domestic partnership dissolutions to adult name changes for transgendered individuals. Our practice also regularly intersects with school law, including advocating for our clients’ children with regard to special education or with their right to dress a certain way or identify with a gender other than that of their biological sex. For those who have worked with a transgender client or child during transition, you are already aware of the obstacles he or she may encounter.
I, myself, cannot believe there is a need to discuss the use of public bathrooms. In my small family law firm we have one bathroom with three stalls—I call it the “Ally McBeal” bathroom, for those from that generation. At any time of day there are multiple people of different gender identities using it. The idea that a government would pass laws about who could use what bathroom is absolutely absurd to me. Are people really going to look at someone washing their hands next to them and say. “Hey, although you look like a male, I think you’re a female and shouldn’t be in this bathroom?” I mean, are people really checking?
In March 2016, North Carolina passed a law that requires transgender individuals to use public restrooms corresponding to the biological sex on their birth certificate, see http://www.ncleg.net/Sessions/2015E2/Bills/House/PDF/H2v4.pdf, (titled “An Act To Provide For Single-Sex Multiple Occupancy Bathroom And Changing Facilities In Schools And Public Agencies And To Create Statewide Consistency In Regulation Of Employment And Public Accommodations.”). Leaving aside the fact that this law appears to be clearly unconstitutional on its face, I can’t imagine how it will be enforced. What is the legitimate state interest here in making sure you pee next to someone born with your same biology, but who identifies as a different gender (and may also be better looking than your spouse)? If you don’t believe me, check out the Twitter feeds addressing this law where courageous individuals from the transgender community point out the absurdity of the law, (see #HB2 #trans #NorthCarolina #shameonNC; #shameonnc #wejustneedtopee #peequality #occupotty and #wearenotthis https://twitter.com/JayShef/status/712845760287494144/photo/1?ref_src=twsrc^tfw).
Unfortunately, this is a real issue. Many transgendered individuals in North Carolina are choosing not to use public restrooms. And in my capacity as a parent, a lawyer and a member of my local school board, I have a particular concern about what happens in the schools. This law was specifically aimed at schools, those places where we look to create safe spaces for children and young adults. Districts across the country have spent thousands of dollars on anti-bullying efforts, student codes of conduct, and character-building programs. Are transgender students in North Carolina now being forced to use bathrooms which betray who they are? The answer is yes. Currently, there are multiple federal lawsuits pending in North Carolina concerning that law, of which the University of North Carolina is embroiled in at least one.
California, Colorado, Connecticut, the District of Columbia, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Jersey, Oregon, Vermont and Washington State all have laws in effect that ban discrimination in schools based on gender identity or expression, as well as sexual orientation, (http://www.transequality.org/know-your-rights/schools). Federally, Title IX of the Education Amendments of 1972 and its implementing regulations prohibit sex discrimination in educational programs and activities operated by recipients of federal financial assistance. The U.S. Departments of Education and Justice released a joint letter providing guidance to educators that states that the prohibition of discrimination extends to gender identity, including transgender students, (https://www.justice.gov/opa/file/850986/download).
So one would think that a school district (let alone a state) should know better, i.e., students should use the bathrooms designated for the gender with which they identify. To do otherwise would be unlawful discrimination and the school would risk losing its federal funding, right? Not so. In Virginia, a student had to sue the school board to use the bathroom he felt most comfortable using. The U.S. Court of Appeals for the Fourth Circuit supported his right to do so, but the Board of Education has indicated it intends to take the case to the U.S. Supreme Court in Grimm v. Gloucester County School Board, G.G. ex rel. Grimm v. Gloucester County School Board, F.3d (4th Cir., Va. Cir. 2016). In addition, eleven states—Texas, Alabama, Wisconsin, West Virginia, Tennessee, Oklahoma, Louisiana, Utah, Georgia, the Arizona Department of Education and the Governor of Maine—have sued the federal government in the U.S. District Court for the Northern District of Texas, seeking an injunction against the regulations expressed in the joint letter referenced above, as held in Texas v. United States, No. 7:16-cv-00054-O (N.D. Tex. filed May 25, 2016).
Before the North Carolina law was even proposed, many school districts across the country had taken the appropriate step of creating policies which supported a student’s choice to identify with the gender (s)he felt most comfortable. In my own district, I was proud when we passed a policy and corresponding regulation that not only confirms a student’s right to use the bathroom of his or her own choosing, but also to be identified by a name and pronoun as (s)he sees fit, protects the student’s privacy, and provides that he or she shall participate in physical education with other students of the same gender with which the student identifies. The policy goes on to address transitioning students and how the school can assist them with their transitions, even recognizing that a student’s parent may not be supportive, but confirming the value of the choice the student has made.
As a family and education lawyer and a school board member, I believe part of my role is to make sure the students and children I am advocating for are safe and treated with respect. That includes being free from discrimination. Whether you practice in this area of law or not, I think we all can agree that where to go to the bathroom should be a choice of the person in need of one, and not the legislators sitting on their thrones in the capital.
Reprinted with permission from the JULY 5, 2016 issue of THE LEGAL INTELLIGENCER (online). © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All Rights Reserved.
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