Bill advances ‘civil rights’ claims on gender-neutral bathrooms

May 16, 2013

By Katy Grimes

There Oughta Be a Law book cover

As if plucked right out of the silly book, “There Oughta Be A Law,” San Francisco Assemblyman Tom Ammiano has been pushing a bill through the Legislature which has the potential of turning all schools into beta test sites for social experiments.

AB 1266 would require a student to be permitted to use the male or female bathrooms and locker rooms in public schools, based on the student’s gender self-identification.

Lawmakers who support this bill claim they are protecting civil rights by creating laws for transgender persons. However, the bathroom is usually a place where there is an expectation of privacy. So the question becomes: Whose civil rights are being protected and whose are being trampled?

Sponsored by the National Center for Lesbian Rights, Equality California, Transgender Law Center and Gay Straight Alliance Network, AB 1266 would also require students be allowed to participate in sports and programs as the gender with which they identify.

While the Los Angeles Unified School District and San Francisco schools have already adopted “Transgender and gender variant students, ensuring equity and nondiscrimination” policies, the LAUSD acknowledged Ammiano’s “legislation cannot anticipate every situation that might occur with respect to transgender and gender variant students.”

Is there a real need for this bill?

In the bill analysis, Ammiano said:

“AB 1266 clarifies California’s student nondiscrimination laws by specifying that all students in K-12 schools must be permitted to participate in school programs, activities, and facilities in accordance with the student’s gender identity. This bill is needed to ensure that transgender students are protected and have the same opportunities to participate and succeed as all other students.

“Although current California law already protects students from discrimination in education based on sex and gender identity, many school districts do not understand and are not presently in compliance with their obligations to treat transgender students the same as all other students in the specific areas addressed by this bill. As a result, some school districts are excluding transgender students from sex-segregated programs, activities and facilities.”

The requirement Ammiano makes of schools to treat transgender students the same as all other students is perplexing. That is exactly what most schools are doing. It’s only when parents and special interest groups sue that these issues escalate.

Washington State problems

Washington State passed such a law in 2006, and has run into a big problem.

“Parents in Washington state became outraged last year when their young daughters, who participate in their local swim club, discovered a male sitting naked in the sauna ‘displaying male genitalia,’” the Christian News Net reported last fall. However, police and school representatives of Evergreen State College alike said there wasn’t anything they could do about the situation because of state law.

The transgender “student” is 45 years old.

Child transgender cases

There is also the case of the first grade transgender girl whose parents allowed their six-year-old son to “come out” as a girl. The parents then filed a complaint with the Colorado Office of Civil Rights alleging a violation of the state’s anti-discrimination law because the elementary school didn’t allow the child to use the girls’ restroom. The school tried to accommodate the girl by allowing her to use the bathroom in the school office, but that wasn’t enough for the parents. With the help of The Transgender Legal Defense & Education Fund, the parents sued, and their child’s intensely personal story has been made very public.

Yet research suggests that many children gradually become “comfortable with their natal gender,” an American Psychiatric Association task force reported in 2011. But the goal of any treatment should be to help the child adjust to its reality, the APA says.

The transgender condition was added to the APA diagnosis manual in 1980. In the newest edition of the manual, the condition has been renamed Gender Dysphoria.

But many parents and students feel this very small group is being moved to the front of the civil rights line.

The Pacific Justice Institute is opposed to Ammiano’s bill, and is fighting hard to kill it. “Foremost among the bill’s many shortcomings is its complete disregard for the privacy of the vast majority of students who are not transgender or gender-questioning,” PJI said. “These students (and their parents) have reasonable expectations that they will not be forced to share intimate spaces with members of the opposite biological and anatomical gender. There are no safeguards whatsoever in the legislation that would allow responsible adults, including coaches, teachers, chaparones, school administrators and others to act in the best interests of all students.”

If AB 1266 is passed and signed into law, girls will be forced to use bathrooms, locker rooms and showers with anatomical males, and boys with anatomical females, because the transgender persons self-identify as a member of the opposite sex.

Legal issues

In the private sector, employers are required to make “reasonable accommodations” for persons of all legally protected categories. One reasonable accommodation for a transgender employee would be exactly what the school offered the Colorado first grader — allowing someone to use a private bathroom instead of the common facilities.

Protecting the privacy interests of minor students more than adults was supported in Doe vs. Clenchy, Maine Superior Court, 2012. The court ruled that a school district did not 
act discriminatorily by assigning a third grade male-to-female transgender student to use a faculty restroom rather than the female student restrooms.

Several federal and state courts have recognized the significant concerns of opposite sex entry into restrooms and other similarly sensitive, usually private facilities. In Etsitty vs. 
Utah Transit Authority, 10th Circuit Court of Appeals, 2007, a male-to-female transsexual was terminated by the Utah Transit Authority for entering women’s public restrooms while on the job because 
the UTA feared liability from patrons. In 
the ensuing unlawful gender discrimination suit, the 10th Circuit ruled in favor of the UTA, stating that requiring employees to use restrooms that match their biological gender is not discriminatory.

In Goins v. West Group, Minnesota Superior Court, 2001, a male-to-female transgender resigned from and then sued 
West Group after not being allowed to use the women’s restroom. The Court held that West Group’s policy of requiring employees to use the restroom assigned to their biological gender, rather than their self-image gender, was not discriminatory, stating that “the traditional and accepted practice in the employment setting is to provide restroom facilities that reflect the cultural preference for restroom designation based on biological gender.”

These legal cases support the common sense understanding that biological and anatomical gender still matter in certain intimate contexts.

Another concern is the insistence that gender should be entirely self-identified and divorced from anatomy.

The bill analysis claimed there was no fiscal component or issue with AB 1266. But if it is passed, expect to see public schools being forced to completely remodel bathrooms and locker room facilities to comply. Doing so also would deplete scarce school funds.

Ammiano’s bill establishes no standard to determine the veracity of a pupil’s claim to a particular gender identity. Without establishing any standard, the determination will be left to the pupil who may claim any gender identity at any time for any reason.

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