Earlier this week, a federal judge granted a preliminary injunction that (1) allowed Texas and other states to force transgender students to use bathrooms that do not match their gender identities and (2) prevented the United States government from investigating this type of discrimination across the country. This preliminary injunction remains in effect until that same Court rules on the merits in the case. Basically, Texas and other states claim that the word “sex” under Title IX, the civil rights law pertaining to education, refers to a person’s genitals, not their gender identity.
This lawsuit, one of several across the country, comes after the U.S. Department of Education and the U.S. Department of Justice released a guidance document in May of 2016 in which they clarified that Title IX prohibits schools from discriminating against students on the basis of their gender identity, defined as “an individual’s internal sense of gender” that “may be different from or the same as the person’s sex assigned at birth.” They stated:
As a condition of receiving Federal funds, a [public or private] school agrees that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities… The Departments treat a student’s gender identity as the student’s sex for the purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity.
Regarding bathrooms, the Departments said: “A school may provide separate facilities on the basis of sex, but must allow transgender students access to such facilities consistent with their gender identity.”
Thus, according to the Obama administration, a school that forces a child who identifies as female to use the boys’ restroom has violated Title IX.
Texas and other states, however, disagree. Technically speaking, the Court hasn’t ruled on the merits of the case, but the Court so far agrees with the states. In its order on the preliminary injunction, the judge wrote: “It cannot be disputed that the plain meaning of the term sex… meant the biological and anatomical differences between male and female students at their birth.”
So, basically, according to the states and to this judge, all the matters is what’s between our children’s legs. That’s pretty creepy when you think about it.
It’s also concerning to me that the Court seemed to think that the “injury” to the states — that schools might risk losing federal funding because they can’t stop obsessing about what lies between children’s legs and forcing them to use the corresponding bathroom — outweighs the harm to the child of being forced to use the wrong bathroom.
Not only does being forced to use the wrong bathroom isolate and stigmatize transgender children, but it is also hazardous to their health.
Recently, I saw a reference in literature to this issue in Alex Gino’s George, in which a child who identifies as female must use the boys’ restroom:
[George*] stumbled, sobbing, into the bathroom—the boys’ bathroom. Her lips trembled and salty tears dripped into her mouth. George hated the boys’ bathroom. It was the worst room in the school. She hated the smell of pee and bleach, and she hated the blue tiles on the wall to remind you where you were, as if the urinals didn’t make it obvious enough. The whole room was about being a boy, and when boys were in there, they liked to talk about what was between their legs. George tried never to use it when there were any boys inside. She never drank from the water fountains at school, even if she was thirsty, and some days, she could make it through the school day without having to go once.
No child should go all day without drinking water or using the bathroom because their schools force them to use the wrong one. It’s heartbreaking, and apparently, at least for the time-being, legal in the United States under Title IX.
*I inserted “George” at the beginning of the quote because that is the name that appears throughout the paragraph. However, Melissa is the name the child prefers to use. For more on the recalcitrance of the name “George,” see George or Melissa? It Matters.