Monday, October 18, 2021

Select legal activity on the transgender issue


Voxitatis reported last month that Township High School District 211, based in Palatine, Illinois, was being charged in a complaint filed with the Office of Civil Rights of the US Department of Education, with not permitting a transgender female student unrestricted access to the girls’ locker room at one of the district’s five high school for the purposes of changing and showering. District 211 recently reversed their position.

The student in the complaint was born a boy but asserts a gender identity as a girl. The US Department of Education wrote a letter saying the district was required, under Title IX, to allow unrestricted access to the girls’ locker rooms for the purposes of changing and showering.

The district expressed disappointment with the ruling, saying it was doing everything right, under Title IX and all other applicable laws, in keeping biological boys out of the girls’ locker rooms, where people of the opposite sex, not gender, would be required to be naked.

The case drew significant backlash from across the nation, including one commenter on a New York Times article about the case who identified herself as a “student” and wrote, “Call yourself Tarzan. Call yourself Jane. I don’t care. I don’t know you from Adam. But I know a man when I see one, and I better not see you in my locker room.”

Therein lies the crux of transgender cases about bathroom access. Does Title IX refer to a person’s biological sex or to his or her asserted gender identity? Since Title IX was written long before this was a question, we simply don’t know. So we have debates, community outrage, and court cases.

Now before the US Court of Appeals for the Fourth Circuit, for example, is a case of a Virginia high school student who was born a girl but asserts a gender identity as a boy. He has received a medical diagnosis of gender dysphoria, had a legal name change, and obtained a driver’s license that identifies him as a male.

The school he attends, in the Gloucester County School District, initially allowed him to use the boys’ bathroom, but after two months received what it has called “numerous complaints from parents and students.” I assume those complaints are similar to the comment posted on the Times article about the Illinois case.

South Carolina’s attorney general, Alan Wilson, filed an amicus, or “friend of the court,” brief with the Fourth Circuit in support of Gloucester County’s position, adopted after about two months of public outrage, the Jasper County Sun-Times reports. It wasn’t just him, either. The brief was also signed by attorneys general Mark Brnovich of Arizona, Jim Hood of Mississippi, and Patrick Morrisey of West Virginia, and by governors Paul LePage of Maine and Pat McCrory of North Carolina.

He asserts the following points:

  1. Title IX applies only to biological sex, not to gender identity at odds with an individual’s biological sex
  2. The 14th Amendment’s Equal Protection Clause doesn’t require schools to open boys’ restrooms or locker rooms to biological females

He may be right on both points. But schools will eventually have to decide how to treat transgender students so we can ensure equality of treatment under the law for all transgender students, male and female.

Smaller transgender questions face First-Amendment challenges. For example, a school district in Tennessee has banned the wearing of pro-LGBT shirts at school, in possible violation of students’ free-speech rights, the Tennesseean reports.

The American Civil Liberties Union, which is also involved in the Virginia transgender case above, claims students’ free-speech rights are being violated.

In a lawsuit against Giles County Schools, the student involved, Rebecca Young, says Richland High School violated her First Amendment free-speech rights by banning the shirts. She wore a pro-LGBT T-shirt on the first day of school with the words “Some People Are Gay, Get Over It” on it. The suit claims that RHS Principal Micah Landers publicly reprimanded her for wearing the T-shirt and told her she couldn’t wear the T-shirt to school because it made her a target for bullying and provoked other students.

The suit claims the district’s superintendent made things worse when he said any clothing expressing support for the LGBT community, including a rainbow symbol, violated the school’s dress code, which prohibits the wearing of slogans about or suggestive of “drugs, alcohol, sex, obscenities or [that] prove to be a disturbing influence.”

Ms Young has some support from precedents in other circuits. The US District Court for the Northern District of Florida held in Gillman v School Board for Holmes County that a high school principal’s decision to prohibit students from displaying messages or wearing symbols advocating acceptance of gay people did indeed violate their First Amendment rights.

The court concluded that the school district could not justify banning the speech based on the substantial disruption standard established in Tinker v Des Moines Ind. Comm. School Dist., and that the decision constituted impermissible viewpoint discrimination based on the principal’s religious views on homosexuality.

Transgender issues in elementary school

Finally, a primary school in Wisconsin has decided not to have students read the book I Am Jazz, about a transgender girl, after parents complained, the Cap Times reports.

Parents were notified by letter that, in support of a transgender student at the school, students would read the book. But parents threatened a lawsuit that would argue the short notice given was a veiled strategy to catch them off guard.

The district responded by not including the book and posted a note on its website:

As we seek to address the specific needs of the individual student, the District will also be mindful of the needs of other District students and families, and will strive to keep all of the families whose children may be affected apprised of future actions by the District. Please know that our continuing goal is to protect all students from any bullying, harassing or intimidating behavior at school so that all of our students may learn together in a safe and caring environment.

I think this is what people are asking in the overwhelming majority of transgender cases. Nobody is saying the transgender student shouldn’t be treated with respect. Many are simply requesting that the schools respect the rights of non-transgender students as well and with as much weight. Those rights include the right to privacy, which probably includes the right not to be required to strip in front of people who are biologically of the opposite sex.

Transgender adults, as well as gay and lesbian men and women, face higher rates of depression and alcohol and drug abuse than their non-LGBT peers in many of our communities. The Kaiser Family Foundation says 40 percent of gay men and 33 percent of lesbian women report consuming five or more alcoholic beverages per day, compared with lower rates of about 22 percent among heterosexual adults. And although medically, the issue with transgender adults is a far cry from that with gay and lesbian adults, each group faces discrimination.

This treatment by members of our communities, which is largely disconnected from the reality of LGBT individuals, may cause them to feel guilty for feelings they can’t control, feelings that are as natural as attraction to the opposite sex in heterosexual individuals, which society all but rewards. Our government provides resources for LGBT individuals to get proper treatment for depression, but getting information about it to LGBT individuals can be difficult.

Paul Katula
Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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