The Not-So-Great Bathroom Debate

When I was a little girl I would play a game with my dad where I would take one giant step forward and two small steps back. The fun of the game was that the two small steps were not enough to offset the forward step so I was always moving forward.

This game is what our current political climate feels like to me. Under the Obama administration, we took great strides as a nation towards furthering civil rights and protecting the environment. Trump is now forcing us to move back two steps. The current “bathroom debate” is just one example of how the government is rolling back protections of a vulnerable class of citizens – our transgender children. Just last week, the Trump administration lifted the Obama administration’s directive to schools that transgender students must be permitted to use the bathrooms that align with their gender identity, determining that it’s a “states’ rights” issue. But a recent District Court opinion in the Western District of Pennsylvania provides hope that, despite Trump’s efforts to waylay transgender rights, we are still inching forward.[1]

On Monday, a District Court ruled in favor of three Pine-Richland High School transgender students and ordered that they be allowed to use the restroom that matches their gender identity. This bathroom debate is a divisive topic (just read the comments under any article discussing the District Court Case) because most people have not taken the time to learn what it means to be transgender.  Americans are afraid of what they don’t know, and they hate what they are afraid of.  Here, they hate the idea that a person who was born with male sex organs identifies as a female and is, therefore, using the ladies’ restroom.

What is Gender Identity?

Before we get into the court opinion, it is important to understand what the terms “gender identity” and “transgender” mean. Gender identity is a person’s internal, personal sense of being a man or a woman. Transgender is a term used to describe people whose gender identity differs from the sex on their birth certificate.  For transgender people, the sex they were assigned at birth and their own internal gender identity do not match.[2] This is not a mental disease, despite what publications like the Federalist want you to believe. A transgender person is also not a cross-dresser or a drag queen, and you will not be able to grasp the rest of this post until you can see transgender people for who they are.[3]

Gender identity is also distinct from sexual orientation, which describes a person’s physical, romantic, or emotional attraction to another person. Sexual orientation is about who you are attracted to and fall in love with while gender identity is about your own sense of self.

A person cannot change their gender identity in the same way that a person cannot change their sexual orientation. (Again, despite what publicans such as the Federalist want you to believe.) This is why most transgender people seek to bring their bodies more into alignment with their gender identity.[4]

The transgender suicide rate is terrifying. According to surveys, 41% of trans or gender non-confirming people attempted suicide, while only 4.6% of the regular U.S. population and 10-20% of LGB have self-reported a suicide attempt.  Additionally, 50% of transgender people have reported being harassed or bullied in schools, and 80% of transgender teenagers have reported not feeling safe in schools.

By requiring people to use the bathroom that aligns with the sex on their birth certificate, transgender girls are forced to use the boys’ restroom, and transgender boys are forced to use the girls’ restroom. “But what if a teenage boy says he identifies as a girl just so he can go into the girls’ restroom and peer over the bathroom stall?” One, that “teenage boy” is obviously NOT a transgender girl. Two, you need to do some research if you still do not understand the difference between crossdressers and transgender girls.  Three, and most importantly, for all that is good and holy teach your sons not to assault women and then this won’t even be a question.  (Point 3 is for another blog post.)

Evancho v. Pine-Richland School District

In Evancho v. Pine-Richland School District, Pine-Richland High School near Pittsburgh, Pennsylvania had a policy of allowing students to use the restroom aligned with their gender identity. Parents complained that transgender students were using the bathrooms aligned with their gender identity and the Board of Directors of the Pine-Richland School District voted to provide sex-specific restroom facility usage: students had the choice of using either the facilities that correspond to their biological sex or unisex facilities (the “Resolution”).

In response to the Resolution, three seniors at Pine-Richland High School filed a complaint in federal court. Plaintiffs Juliet Evancho and Elissa Ridenour, both over eighteen years old, fully identify as girls and are identified by others as girls. Plaintiff A.S., who is not yet eighteen, fully identifies as a boy and is identified by others as a boy. As the Court stated, “That is how they live, and have lived, their lives in all regards, and they are otherwise treated as such.”

Coincidentally, Juliet Evancho is the sister of Jackie Evancho who sang at President Trump’s inauguration. Her picture is below and her personal story of coming out as transgender to her family is available at Teen Vogue, which is really killing it with progressive articles.[5]  As an even further aside, Juliet also ran for Homecoming Queen and was voted onto Homecoming Court by her classmates.

juliet

Back to the case – the Plaintiffs argued that the Resolution violates: 1) Title IX of the Education Amendments of 1972 by unlawfully discriminating against them based on their sexes; and 2) the Equal Protection Clause of the Fourteenth Amendment by impermissibly treating them differently than other students based on their gender identifies, and therefore their sexes. They sought an order enjoining the school district from enforcing the Resolution, and restoring the status quo as to how the school district interacted with plaintiffs prior to enacting the Resolution.

The Court determined that the school district, a government entity, was distinguishing the Plaintiffs from other students whose gender identities are congruent with their assigned sex. Plaintiffs Evancho and Ridenour would be required to use the restroom labeled “boys,” and Plaintiff A.S. would be required to use the restroom labeled “girls.” The Court explained, “[U]nlike every other student, the Plaintiffs would have to use restrooms where they are wholly unlike everyone else in appearance, manner, mode of living, and treatment at school.” The Resolution, therefore, discriminated based on transgender status. The Court applied an immediate scrutiny test, and found that the Plaintiffs had a reasonable likelihood of success on the merits of their claim that the District had not demonstrated that applying the Resolution to Plaintiffs’ restroom use actually furthers an important governmental interest. The Court, therefore, granted their request for a preliminary injunction based on the Equal Protection claim.

What’s Next?

Next month the Supreme Court is hearing oral argument on a case brought by Gavin Grimm, a 17 year-old transgender male whose school in Virginia will not allow him to use the men’s restroom.  Gavin’s photo and his plea to his School Board is below.  Let’s hope for Gavin’s sake, and the sake of thousands of other transgender students, that the Court rules in his favor.

Gavin.jpeg

[1] http://files.eqcf.org/cases/216-cv-01537-76/

[2] http://www.glaad.org/transgender/transfaq

[3] http://feminizationsecrets.com/transgender-crossdressing-myths/

[4] https://williamsinstitute.law.ucla.edu/wp-content/uploads/AFSP-Williams-Suicide-Report-Final.pdf

[5] http://www.teenvogue.com/story/juliet-evancho-transgender-teen-girl-story.

 

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