Some educators fear angry mobs more than the law.
Let me explain. I’ve been executive director of Garden State Equality—New Jersey’s civil rights advocacy organization for the lesbian, gay, bisexual, and transgender community—for about five months now. One of my main takeaways is that too many school officials would rather break the law than get a lot of phone calls from upset parents.
The thing I’m talking about here is civil treatment—in both the humane and legal senses—of transgender students. I’ve traveled the Garden State plenty, talking with teachers and school staff about LGBT sensitivity. I give a lot of lessons in how to treat transgender kids with respect, and I’m sure to mention two things in my trainings: 1) if you want to treat transgender kids decently, let them use whatever gender-segregated things they identify with; and 2) the law requires that you do so.
New Jersey law is really clear about this. Our state civil rights law, the Law Against Discrimination (an awesomely authoritative name—it sounds like something that should be on tablets, ergo I shall refer to it henceforth as The Law), protects people on the basis of gender identity and expression, which includes transgender people. Transgender people are protected from discrimination in public accommodations, which includes, to quote The Law: “any kindergarten, primary and secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey.”
OK, so schools are covered by The Law. What constitutes gender-segregated facilities? Bathrooms? Locker rooms? The Law speaks: “[N]othing contained herein shall be construed to bar any place of public accommodation which is in its nature reasonably restricted exclusively to individuals of one sex … provided individuals shall be admitted based on their gender identity or expression.”
There’s no question, then, that New Jersey’s transgender kids who want to use facilities that match their identities are covered by state law. And the feds back them up. Recent U.S. Department of Education Title IX guidance has said explicitly that children are protected from discrimination in schools on the basis of sexual orientation, gender identity, and expression.
Thinking about how that plays out, let’s imagine you’re an educator. You have a transgender boy and a boy who isn’t transgender. You let a boy who isn’t trans use the boys’ room, but you don’t let the trans boy. They’re both boys. They both need to use the bathroom. You’re discriminating against the trans boy on the basis of his being trans. And that’s contrary to Title IX.
But there’s more! Just this month, the Department of Education put out a really helpful guidance saying that for gender-segregated classes, (think gym or health classes), transgender kids have the right to attend whatever class agrees with their gender identity. Ergo, transgender girls in girls’ classes, transgender boys in boys’ classes.
What about the angry mobs I mentioned in my first sentence? When I give teachers this legal background, I’ve heard, on more than one occasion, something like the following: That’s all fine to say, but you don’t have to deal with the parents that call saying, A boy is in my little girl’s bathroom at school! (I should also note that educators I’ve spoken with agree that very few K-12 students care about what bathroom transgender kids want to use.)
I’m empathetic with these educators. First of all, I’m confident that the vast majority I’ve spoken with understand that a transgender girl is a girl and a transgender boy is a boy. They also realize that we should respect the preferred names and pronouns of youth who identity as neither male nor female—some of whom identify as genderqueer, and who frequently identify with gender-neutral pronouns, like they, them, and theirs. Educators call me in to train them because they want to do the right thing. They want to make a healthy environment for their students.
But transgender kids, while increasingly visible, are still fewer in number than actual or imagined angry, ignorant, and/or transphobic parents. Laws aren’t easy to parse. What’s more, not all families are willing to out their transgender kids, or risk the school’s ire, to battle the school openly.
I’ve been working with—led by, actually, because his strategic sense is amazing—a 16-year-old transgender boy from Ocean County named Rubin Smyers, whose school forced him to use a single-stall bathroom about a football field’s length from more convenient boys’ bathrooms. Rubin met with administrators, pleaded his case (to use the boys’ room), got more than 2,000 people to sign a petition advocating for his position, and asked me to send a letter to his principal saying—politely but firmly—that the school was violating the law. The school gave in to Rubin’s demand earlier this month, which is to say they stopped violating state and federal law.
Rubin is a great example of a smart kid making a smart argument in a smart way, but for schools that don’t have a Rubin to make them act justly, I offer this: Whichever side you choose—in denying or allowing transgender kids the right to use facilities or classes that match the kids’ gender identities—you are going to upset someone. If you deny, you probably traumatize the kid, irritate his parents, traumatize and irritate all present and future transgender kids, and embolden the bigots. You will face this same choice again, and if you let the bigots win once, they’ll try to win again. And you risk a lawsuit that you’ll lose.
If you do the right thing, you maybe irritate some parents, but you affirm to the community that you stand for justice. You affirm that transgender kids are legitimate humans whose gender identities are also legitimate. (Other students will continue to be fine with their transgender peers and wonder what the big deal is.) The bigots will lose—and will know for all future situations that their protests will go nowhere. The law is totally on your side. And if you’re in New Jersey, you won’t get a polite but firm letter from me saying you’re wrong.
