Transgender Bathroom

The debate over gender neutral restrooms in public schools is poised to explode in Pennsylvania as at least four districts lead the way for non-discriminatory policies and two bills wait for action in both chambers of the Legislature. This photo was taken at the University of Vermont in Burlington, Vt. (AP Photo/Toby Talbot)

(Toby Talbot)

In recent weeks two Philadelphia suburban school districts adopted comprehensive policies addressing the rights of transgender students.

The policies adopted by the Great Valley and Springfield Township school boards cover a swath of critical education opportunities, including privacy rights for transgender students, access to bathroom and locker rooms and athletic activities, as well as dress codes, and general harassment and discrimination.

The same conversation is happening in at least two other school districts - the Pine-Richland School District in Allegheny County and the Lower Merion School District, in Montgomery County, whose school board on Monday night was slated to vote on such a policy.

School administrators say such conversations have for years played out across many of the state's 500-plus school districts, but now the tenor and tone of those conversation have taken on a heightened resonance amid the increasing national dialogue on the civil rights of transgender individuals.

"Most superintendents have been dealing with these kinds of issues over the past several years," said John Friend, president of the Pennsylvania Association of School Administrators and superintendent of the Carlisle Area School District.

For the most part, most superintendents, he said, have been following the guidelines that were laid out on Friday by President Obama, directing public schools to allow transgender students to use bathrooms matching their gender identity.

"We are trying to accommodate students and working with families to make sure we are dealing with issues that are prevalent," Friend said. "I think each case is handled case by case, though in the future we will be looking to develop policy. I see that coming."

Obama's guidance, issued in the form of a letter from the Departments of Education and Justice, call on school districts to ensure that "transgender students enjoy a supportive and nondiscriminatory school environment." Failure to fulfill that mandate could jeopardize federal funding under the Title IX law, the federal education anti-discrimination law, which ensures that schools receiving federal funds do not discriminate based on a student's gender or expression of gender.

In Pennsylvania, educational policies are primarily set at the local level -- with stakeholders that include school boards, taxpayers, students, teachers and parents weighing in on the debate.

While Great Valley and Springfield Township school districts in suburban Philadelphia have enacted policies targeting equal treatment for transgender students, other school districts have seen vigorous pushback to such proposals.

Local reports out of the Pine-Richland School District, for instance, have detailed concerns from parents about the district's practice of allowing transgender students to use restrooms based on the gender with which they identify.

Supporters of Helena Stone, not in photo, a 70 year old transgender woman whose legal name is Henry McGuinness, stand outside Grand Central Terminal during a demonstration against the Metropolitan Transportation Authority police, Tuesday, Feb. 28, 2006, in New York. Stone was arrested on disorderly conduct charges on Sept. 29, 2005, on Dec. 17, 2005 and on Jan. 12, 2006, for using the women's bathroom at Grand Central Terminal. (AP Photo/Mary Altaffer)

Students in the district have largely supported the requests of transgender students. The pushback has largely come from adults.

The debate is testing new waters. The issue is coming under scrutiny now in the wake of North Carolina's adoption of a state law requiring people to use the public restrooms that correspond with the gender on their birth certificate. Last week, the U.S. Justice Department sued North Carolina over the law, saying it violates U.S. civil rights laws.

In spite of the evolving conversation, school districts, says one legal expert, are wise to voluntarily comply with the Obama Administration's directives.

"It's a completely unsettled area of law," said Emily Leader, an attorney with the Pennsylvania School Boards Association. "You've got to take the significance of the guidelines seriously and make a decision contrary to it with eyes wide open. I can't tell members this is exactly what you have to do, but I can say this is exactly what the Department of Education says you have to do."

School districts in Pennsylvania, and across the country, likely fall into one of two camps:

Districts that define gender as based on what was assigned biologically at birth could be sued under the equal protection clause of the law, or even by the federal government under Title IX provisions.

Districts that have adopted policies that explicitly put transgender students as a protected class, who might be challenged by individuals who argue that such a policy violates rights to privacy and bodily integrity.

In either scenario, the debate is cutting edge, Leader said.

"I don't think either side is home free in this argument," she said. "I think there are competing arguments right now. They are being played out nationally in various courts and legislatures."

The most significant court ruling to date -- in particular as it relates to Pennsylvania -- is the recent ruling out of a Virginia federal appeals court in favor of a transgender student. In G.G. v Gloucester County School Board, the federal appellate court ruled that a 16-year-old transgender student who was born female had the full weight of the Title IX law extending to him the right to use the bathroom that corresponds with his gender identity.

Gavin Grimm, shown here at his home in Gloucester, Va., is a transgender student whose demand to use the boys' restrooms has divided the community and prompted a lawsuit. (AP Photo/Steve Helber)

"This is just the beginning," said Jason Landau Goodman, executive director of the Pennsylvania Student Equality Coalition, referring to the the handful of Pennsylvania school districts leading the way in enacting non-discriminatory policies. "They are sending a beacon of light that transgender student's rights should be protected."

Goodman said the youth-led statewide advocacy group had surveyed scores of superintendents across the state and found none who were planning to defy anti-discriminatory guidelines.

"We've been urging this formal conversation for over two years," he said. "Seeing these districts come together it's huge...We're going to be very busy in coming years in implementing these policies."

Efforts to enact non-discriminatory legislation with regards to sexual orientation or gender expression or identity have been circulating in the General Assembly for a few years.

Both chambers of the Legislature currently have proposed legislation calling for the civil protection of rights on the basis of sexual orientation and gender expression or identification as it applies to transgender individuals.

Rep. Dan Frankel, an Allegheny County Democrat and sponsor of HB1510, said that while public opinion has swung in favor of anti-discriminatory public policies that would guarantee equal protection to transgender individuals, a significant portion of the General Assembly stands in opposition to that momentum. Nearly half of the states in the country have adopted non-discrimination laws.

"I'm just discouraged that it appears that Pennsylvania will be the last state in the northeast quadrant to adopt such a policy," said Frankel, Democratic Caucus Chairman. "We are behind the eight ball and I think quite frankly an embarrassment."

Frankel's proposed bill builds upon the state's Human Relations Act, which prohibits discrimination in employment, housing and accommodations based on an individual's race, color, religion, ancestry, national origin, sex, education status, handicap, or disability. The law does not apply to lesbian, gay, bisexual and transgender individuals.

Frankel argues that opponents of non-discrimination laws, in the face of mounting support for such laws, have most recently latched on to the idea of the laws as to how they would apply to transgender individuals -- spawning the moniker of so-called "bathroom bills."

"The Achilles heel they could go after is the transgender community because it is the least understood," he said. "The thing that would scare people the most is this concept that they could portray transgender individuals as child predators and then attack legislation from that perspective."

That's exactly what happened in Houston, where this past fall, after a lengthy battle over gay and transgender rights came to a sudden halt when voters repealed an anti-discrimination ordinance similar to those enacted in more than 200 cities. Opponents argued the measure would allow sexually predatory men claiming to be women to enter women's bathrooms.

"You didn't hear much about this bathroom idea over the last couple of years," said Frankel. "Suddenly they seem to be using it as a way to frame the opposition and market what is in my view a bigoted position to attack the non-discriminatory push in its entirety."

Amy Hill, the spokeswoman for the Pennsylvania Catholic Conference, one of the organizations opposed to the proposed non-discriminatory law, explained that the organization has concerns that the legislation does not adequately protect religious liberty.

"Nothing in HB 1510 or SB 974 protects the right of religious organizations to uphold their teachings on sexual orientation, gender identity or gender expression in their hiring practices or ministries in the community," she said.

Frankel said the biggest obstacle to the current bill's precursor -- HB 300 -- was the refusal by Republican leadership to give the bill a fair hearing. While the bill made it out of the judiciary committee, it got bogged down on the floor with what Frankel said were significantly "hostile amendments to the bill that made it very difficult for leaders to bring it to the floor."

"It was a very different time nine years ago," Frankel said. "The whole idea of non-discrimination laws and marriage equality were a long way from where they are today. "It's a different time."

Indeed, these days, conservative voices opposed to such measures cite religious liberties to defend their stance.

"These are not 'bathroom' issues, per se, but about protection of women and children who may be harmed by those with evil intentions who would take advantage of doors that have been opened to them by state policy," said Gary Dull, executive director of the Pennsylvania Pastors Network. "It is imperative now that we tell our friends, family members, neighbors and those in our churches about these dangerous bills. Many may not know this is happening right in our state."

Sam Rohrer, president of the American Pastors Network - and its Pennsylvania chapter - cited biblical and moral foundations to defend opposition to the bills.

"To accept such efforts to distort this reality is to retreat from those fundamental obligations of every person of integrity and character and the very essence of manhood," Rohrer said. "At stake is the defense of the matter of God-designed natural law as reflected in the biological distinctionos between male an female.To accept such efforts to distort is to stand silent and to permit a full assault on God Himself."

The Pennsylvania Coalition Against Rape have shot down arguments suggesting that so-called "bathroom bills" will lead to dangerous situations in women's bathrooms.

"Proponents of measures like this use fear-mongering tactics about risk of sexual violence to help garner support for this discriminatory legislation," PCAR has stated in a press release. "These tactics provide inaccurate information about the risks and realities of sexual violence."

Goodman said he urges the state's education community to take a more visible and supportive stance for such non-discriminatory policies.

"These policies and this guidance are about so much more than bathroom bills," he said. "It's about providing equal access to government institutions to students regardless of their gender identity in the spirit of inclusion and affirming equal opportunity and access for all students."

The state's largest teachers union - the Pennsylvania State Education Association - is taking its cue from its national umbrella organization and supporting the two pending bills in the state Legislature.

The Pennsylvania School Boards Association has not taken a stance in the debate.

The Pennsylvania Association School Administrators has not taken a stance, but its president John Friend says the reason is mainly because the organization, which meets quarterly, simply has not convened to consider the issue.

As the head of schools in Carlisle, Friend said he has several times met with transgender students and their families to ascertain their needs and requests.

"We're a pretty diverse school district," he said. "I don't recall any objections. We've not brought it to board level because we've had only one or two cases. Now that this guidanace has come out, we'll have to develop a board policy... I think they'll want to do the right thing for all students. You want to do the right thing no matter what the situation arises."