Unless South Dakota’s governor exercises his veto power by the end of the day Tuesday, a new state law would become the first in the nation to restrict transgender students’ use of public school bathrooms and locker rooms. Thirteen other states also are considering similar legislation, a sign of mounting backlash against federal policies meant to prevent discrimination based on gender identity.
In the months since the Supreme Court legalized same-sex marriage in all 50 states, school bathrooms have become the new front in the culture wars over LGBT rights. The Obama administration has declared that students have a civil right to use these sex-segregated spaces in accordance with their gender identity, meaning, for example, that a person who is born biologically male but identifies as a female should be able to use a girls’ locker room.
It’s an interpretation of Title IX — the federal civil rights law that prohibits sex discrimination — that transgender students and their advocates have cheered. But it also has triggered a ferocious backlash from other advocates, parents and lawmakers who call it an assault on traditional values and student privacy.
The South Dakota bill and others like it would require students to use public school bathrooms and locker rooms that correspond to their biological sex rather than their gender identity. Gov. Dennis Daugaard (R) has until Tuesday to decide whether to veto it, putting him at the center of a nationwide debate about how public schools should weigh privacy concerns against the interests of transgender students, whose numbers are small but growing.
“We’ve just had a very rapid culture change. . . . It’s hard for me to fathom,” said state Rep. Fred Deutsch (R), the South Dakota lawmaker who sponsored the transgender bill, which national child-welfare and LGBT rights groups decry as a bigoted attack on vulnerable children.
Under Deutsch’s bill, South Dakota school bathrooms and locker rooms would be restricted for use “only by students of the same biological sex” and schools would have to make accommodations for transgender students, such as access to a single-stall teacher restroom.
Deutsch said that he is sympathetic to transgender students and believes gender dysphoria is a “very real thing” but that the government has a duty to protect the privacy of all students.
“It’s about all the children that we have to protect from the opposite biologic sex when they’re young and vulnerable and impressionable,” he said.
The Human Rights Campaign, which tracks LGBT-related bills, has tallied 14 states where lawmakers have introduced measures that would restrict transgender students’ access to bathrooms. Cathryn Oakley, senior legislative counsel for the organization, attributed the spike in legislation to an increased awareness about transgender issues stemming, in part, from Olympic athlete Caitlyn Jenner’s high-profile transition from male to female. Occurring in the Hollywood limelight — on television, in social media, and on magazine and newspaper covers — Jenner’s journey thrust gender identity issues into the public consciousness, ushering in greater acceptance in some corners and a counterreaction in others.
“Many people are starting to understand a little bit more about transgender people,” Oakley said. “The problem is that along with knowing that transgender people exist . . . there is a certain amount of misunderstanding and fear of the unknown.”
One force in the fight over public-school bathrooms is the Alliance Defending Freedom, a nonprofit Arizona-based law firm that pushes to uphold “values of life, marriage and religious freedom.”
The organization has written model legislation to restrict access to school bathrooms and locker rooms that lawmakers in at least five states have used, including in South Dakota, according to Matt Sharp, the alliance’s legal counsel. The group also has emailed its model policy to thousands of school districts nationwide, describing its push as an effort to protect the “bodily privacy” of children — including victims of sexual assault who might be traumatized by running into a member of the opposite biological sex in a restroom.
“They are the silent victims in all of this. Their rights are being trampled on,” Sharp said. “There are fundamental biological differences, and it’s okay to recognize that, particularly when there are privacy reasons involved.”
The U.S. Education Department declared in 2014 that discrimination against transgender students amounts to a violation of Title IX.
Some school districts objected to the administration’s interpretation of the law, a tension that came to a head last year in a Chicago suburb. Federal officials, responding to a transgender student’s discrimination complaint, said that Palatine Township High School District 211 was required to allow the student to change in the girls’ locker room instead of sending her down the hall to a separate facility.
It was the first time that the Education Department found a district in violation of Title IX because of transgender issues.
Officials at the school district initially said they would refuse to comply to protect students’ privacy, even if it meant losing $6 million in federal funding. The dispute led to emotionally charged public meetings that drew crowds of parents who urged the school board to stand its ground.
The school district ultimately changed course, coming to an agreement with the federal department that allowed the transgender student to change in the girls’ locker room, where privacy curtains were installed.
Parents are grappling with this issue in communities nationwide.
Jenna Cheung of Toms River, N.J., signed a petition opposing her local school district's proposed policy, which called for the superintendent to meet with parents of a transgender child to discuss use of bathrooms and locker rooms.
“It’s just a very impressionable age for something like this to be implemented,” said Cheung, 22, who has a 16-year-old sister and a 2-year-old daughter whom she does not want to grow up sharing school bathrooms with transgender students. “It’s just uncomfortable.”
Rebecca Dodds, the mother of a transgender son in South Dakota, said that when she hears from parents who are worried about a transgender student in the bathroom with their child, she understands. She said she might have had the same discomfort before she learned about gender identity issues.
But she said it also was uncomfortable when her son, who was born female and began to present as a boy in high school, used the girls’ bathroom.
“The student and the teacher that were in there were shocked because he appeared male,” Dodds said. That began a painful period during which her son did not use the bathroom at all or used the girls’ bathroom only if there was no one else in it.
The courts have yet to endorse the Obama administration’s interpretation of Title IX. In two cases, federal district court judges have ruled against male transgender students — one a University of Pittsburgh student, the other a high school student from rural Virginia — both of whom claimed their schools discriminated against them by prohibiting them from using male restrooms.
Both cases are being appealed, but the parties in the Pittsburgh case are in settlement talks, according to court documents. The U.S. Court of Appeals for the 4th Circuit heard arguments in the Virginia case in January and is likely to be the first federal appeals court to weigh in on whether bathroom restrictions constitute sex discrimination.
Gavin Grimm, the Virginia high school student, said in his lawsuit that he had been using the boys bathroom for seven weeks at Gloucester High School without issues before the school board, yielding to pressure from parents, passed a policy that required students to use the bathrooms that corresponded to their “biological genders.”
Grappling with his gender identity was hard enough, Grimm said, and being forced from the bathroom where he felt most comfortable only exacerbated the anguish.
“Matters like identity and self-consciousness are something that most kids grapple with in this age range. . . . When you’re a transgender teenager, these things are often very potent,” Grimm said in a call with reporters last month. “I feel humiliated and dysphoric every time I’m forced to use a separate facility.”
Transgender advocates often attribute the backlash to a lack of understanding.
So when Gov. Daugaard said this month that he had never met a transgender person, he heard from a transgender woman, 22-year-old Kendra Heathscott, who corrected him: A dozen years ago, the two crossed paths when Heathscott attended a day program at the Children’s Home Society, a child-welfare organization that Daugaard ran at the time.
The South Dakota governor invited Heathscott and two other transgender people to meet with him last week as he weighed whether to sign into law the bill restricting bathroom use.
“The goal was to go in there and humanize and give a face to the people who he potentially could be impacting,” Heathscott said.
She said she started dressing in girls’ clothing as a child and endured taunting and bullying growing up. Her peers called her “it” and a “he-she.” Locker rooms were especially mortifying. Heathscott was deeply embarrassed about her body, and her appearance in the boys’ locker room became a source of more name-calling. She said she was punished for dressing like a girl and forced to wash off her makeup in high school before school portraits.
Heathscott called the governor “down to earth.” She believed he heard what she and the other young transgender people were saying. And she hoped that it would influence him to veto the measure.
