More Than a “Bathroom Battle”: The Rights of Transgender Children At School

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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.

20 thoughts on “More Than a “Bathroom Battle”: The Rights of Transgender Children At School

  1. Pingback: More Than a “Bathroom Battle”: An Update Now That Sessions is in Charge of the DOJ – The Misfortune Of Knowing

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  3. This is such a contentious subject. Of course I don’t argue that each person deserves and should be treated equally. No question there. BUT, the majority of children do identify with the gender that is shown by “what is between their legs,” and they have a right to feel comfortable in a bathroom as well. Yes, in theory, one should just go into a stall, do the business, and leave. But that is an unrealistic expectation in my opinion (and not only when it comes to bathrooms in a school). I think it’s understandable that a child might feel uncomfortable if someone “different” used a bathroom designated to be for only one gender, and I’m not sure that could ever be argued away, no matter how open-minded we try to raise our children to be. What I don’t understand is that the option to offer unisex bathrooms in addition to gender-specific bathrooms was dismissed right away. Yes, we would still have the distinction based on gender, but it seems to me like it could have been a common-sense solution. I don’t think anyone can argue that the comments one might receive from using a unisex bathroom could be worse any than comments made over using “the wrong” bathroom. And I also wonder over where this would or should stop? Could we, for example, still have sports teams divided by gender? If the answer is no, then you know that at some point in this money-hungry society, an athletic program somewhere would take advantage of that. Anyway, it’s difficult to argue over this in the comments here, unfortunately. I’d love to understand the legal angle a little better, especially when it comes to the question of whether the federal government overstepped its boundary when it threatened to withhold funding. As always, I appreciate that you post about these kinds of things.

    1. Hi! I think many people feel the way you do about this issue. However, I caution against thinking of transgender children’s rights as a slippery slope.

      Some places may choose to have unisex bathrooms — the DNC had one and the sky didn’t fall — but I think the problem with having one unisex bathroom at school and requiring a transgender child to use it is that it isolates that child, a child who shouldn’t be treated differently from other children with the same gender identity.

      Title IX permits sex-segregated facilities, including bathrooms, under certain conditions. The DOJ and DOE’s guidance last May didn’t change that. What it changed is to say that a child who identifies with a gender that does not match their assigned sex at birth can use the facilities associated with their gender identity. That’s pretty narrow actually. This isn’t about a boy using the girls’ bathroom. This is about a *girl* using the girls’ bathroom.

      When it comes to Title IX, the risk of losing federal funding is just theoretical. No school has ever lost federal funding because of sex discrimination. They get investigated by the Office for Civil Rights, and they might have to change a few things. That’s it. For the children, however, the harm is not theoretical. This is about the dignity, equality, and health of transgender children.

      Your comment about sex-segregated sports is particularly interesting. Title IX is only one law that applies to that area (and it allows sex-segregation under certain circumstances). State-based Equal Rights Amendments might also apply. Would it be the end of the world if we stopped using gender as the defining characteristic for sports (and other aspects of life)? Sure, women are on average smaller and lighter than men (on average), but the variation within one sex is greater than the variation between men and women. Can’t a sports team be based on weight or height instead of gender? In teams that have been co-ed, the boys aren’t necessarily the best players.

  4. Thank you for posting this! Yes, I completely agree and it continues to anger me that the prosperity of the institution always is argued to outweigh the wellbeing of a trans child and person. The confusion of gender identity and sex just piles on layers of confusion for our context that doesn’t always care to talk about the differences and separation of the two. I love the title of your post “more than a bathroom battle.” I found myself snapping my fingers saying “yessssssss!” I appreciate how you call it out in plain language -> cisgender privilege has folks in power believe they can police people’s genitals! That is so ridiculous (and as you said CREEPY)!

    1. Thank you! Policing which bathroom a child uses is definitely ridiculous and creepy. At best, it comes from ignorance. I hope that books like George and Jazz Jennings’ memoir (which I’m reading now based on one of the comments to this post) will help people realize what’s really at stake in this debate.

  5. Monika

    Jazz Jennings speaks about her school bathroom experience in her memoir. I feel like everyone should listen to it on audiobook, at least that one chapter, and they’d maybe GET IT. 😦

    1. Thanks to your comment, I’ve downloaded her memoir to read on the train. I should listen to the audiobook, though. The emotional response is different when we hear words rather than read them.

  6. Glad you posted about this, I learn so much through your explanations of the legal aspects. Still a bit shocked these states basically get to tell the gov to shove off!!
    The whole thing is super creepy and super invasive and another way for asshole to be assholes and have the law be on their side! The gender police comes to the “rescue” again and so many trans kids suffer as a result😔 Love the paragraph of George, I need to read this one!

    1. Yeah, states have a lot of power (it’s a federal system). I’m glad you liked the paragraph from George. I think so much of the resistance to transgender rights comes from lack of familiarity. I hope books like George will help people understand what’s really at stake here.

  7. Whereas I see this argument, you also need to take into consideration the people who will abuse this. I go to a public High School and I personally would not be comfortable going to the restroom if it was unisex all of the time because I would be worried about finding students doing… naughty things… in the bathroom because it is a closed door and they won’t get into trouble for going into the same one. I think the quickest solution to the bathroom debate would be to just have a third unisex bathroom that people who aren’t comfortable can go into.

    1. I think a lot of people have similar concerns to what you’ve expressed, but there isn’t any evidence that unisex restrooms encourage criminal or otherwise “naughty” behavior. If it does, then schools should have policies to prevent/react to it (policies they should have in place regardless of whether the restrooms are unisex or sex-segregated).

      As for Title IX, the implementing regulations allow schools to have sex-segregated restrooms, and the guidance the DOJ and the DOE issued last May doesn’t change that. All that guidance says is that schools with sex-segregated facilities “must allow transgender students access
      to such facilities consistent with their gender identity.” That doesn’t leave much room for students to abuse it.

      Thanks for leaving a comment!

  8. I recently saw a meme that suggested we drop “identity” from “gender identity.” I agree. “Gender” is all you need. You are the gender you think you are, no matter what lies between your legs.

    Because people fall along a spectrum (I’m gender fluid, and most days I feel very male, but there are times when I identify as female), we as a society need to get past the bathroom thing altogether. ALL bathrooms should be unisex, inclusive. I don’t think there’s a woman alive who hasn’t used the men’s room in a pinch (think about sporting events, when the lines for the ladies’ is a mile long); should they now be charged as criminals because they had to pee bad enough to use the restroom that was convenient? This whole issue is ridiculous.

    1. Agree completely. All bathrooms have stalls. Go in a stall, do your business, wash up, leave. Those who have this ongoing obsession with what’s happening in the stalls (specifically the body parts involved in the process) are the folks we should be troubled about, rather than anyone who simply wants to relieve themselves.

    2. Thanks for adding this perspective, Fen. I wish we could get past using sex/gender to treat people differently. I think gender is all we need too, though that might not resolve the issue of whether Title IX covers it when it uses the term “sex.”

I appreciate your comments (respectful dissent is welcome)!

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