Transgender groups urge states to open public school restrooms based on gender identity.
New Jersey Gov. Chris Christie signed legislation last week that requires the state’s education department to push transgender-friendly policies in public schools.
The law prevents schools from adopting policies that require students to use restrooms based on their biological sex. It stops short of forcing schools to open restrooms and locker rooms based on gender identity but orders districts to at least find “reasonable alternative arrangements.”
In other states, those reasonable arrangements often mean single-user, unisex facilities. But transgender advocates have challenged such accommodations as discriminatory in Virginia and Pennsylvania. In those cases, transgender students have argued anything less than unfettered access to single-sex facilities would trample their rights.
Still, the gay rights group Garden State Equality applauded Christie’s support for LGBT youth. The New Jersey law also requires the state to encourage schools to let students use the name, pronoun, and dress that correspond with their gender identities.
In Minnesota, education officials just adopted a toolkit giving guidance to schools about dealing with “gender-nonconforming” students. It’s not binding, but the Minnesota Family Council noted it ignores concerns from gender-conforming students and their parents. Among other things, it encourages teachers to ask students as young as kindergarten about their “preferred” pronoun. Parents who spoke out against the toolkit said it “encourages teachers to teach false conceptions of gender.”
Schools all over the country are scrambling to develop their own policies toward transgender students. The Obama administration tried to mandate a one-size-fits-all approach in 2016 by threatening to withhold federal funds from any district deemed transgender-unfriendly. The Trump administration rescinded that threat earlier this year, saying each state should be allowed to make its own rules with input from parents and students.
Transgender rights groups cried foul then, and now they’re sending state educators thinly veiled lawsuit threats. In a letter last week, 50 civil rights groups urged state officials to require schools to adopt open restroom policies. Anything less than full access, the groups wrote, violates students’ constitutional rights: “And when schools fail to comply with the law, they will continue to be subjected to lawsuits filed by and on behalf of aggrieved students.”
Many court-watchers see the transgender bathroom access fight as the next same-sex marriage battle. Advocates want to expedite lawsuits to the Supreme Court, where they hope justices will side with their interpretation of constitutional rights. At least one federal court already has. The 7th U.S. Circuit Court of Appeals ruled in May that a girl in Wisconsin should be allowed to use the boys’ facilities. The court dismissed claims of “hypothetical” harm to boys who didn’t want to change in front of a girl. The Kenosha Unified School District, which lost the case, hasn’t yet decided whether to appeal. But if that case doesn’t make it to the high court, another one soon will.
Anticipating that legal battle, Texas conservatives are trying to get ahead of the federal courts by setting a precedent in state law. During a 30-day special session that started last week, legislators will consider a bill that maintains the status quo for single-sex facilities, which have always been based on biology. The state Senate passed the bill during the regular session, but the House limited it to public schools. Even then, the measure failed to get enough votes to pass. Despite support from Texas Gov. Greg Abbott and Lt. Gov. Dan Patrick, any restroom access restrictions face a stiff fight. The Texas Association of Business announced a $1 million advertising campaign against any restroom access measures, warning of “terrible economic consequences.”
North Carolina, the only other state to adopt a law governing restroom use in public facilities, scaled back its measure earlier this year after intense pressure from businesses, sports leagues, and other national groups. Abbott isn’t worried about boycotts, and he’s never been hesitant to defend conservative policies in court. If he can secure enough votes to get something passed before Aug. 18, a date with a federal judge probably won’t be far behind.
— by Leigh Jones