In North Carolina, Charlotte-Mecklenburg Schools (CMS), one of the nation’s largest districts, last week bucked the country’s toughest transgender bathroom law.
Meanwhile, in sparsely-populated Blaine County, Idaho, residents gathered recently out of both concern and sympathy over whether to allow transgender children to choose which bathroom to use once the school year begins.
They’re two snapshots that underscore what’s rapidly become a difficult and immediate reality for schools across the United States, especially in the wake of the deadly attack on a gay nightclub in Orlando, Fla., on June 12.
While it’s camp and pool season for the kids, school administrators, principals, and teachers are trudging a thin line between state and federal directives – and the potential of upset parents – as they struggle to balance concerns about privacy and safety with a fundamental mission to provide what CMS Superintendent Ann Clark calls a “safe and joyful journey” through school for all students.
The struggle comes amid legal and political wrangling over an Obama administration directive that interpreted transgender bathroom choice as covered by the Civil Rights Act of 1964, which bars sex discrimination. Thirteen states, including Georgia, have sued, saying the interpretation is “overreach” of federal power. It’s a once obscure issue that’s now challenging America’s nearly 100,000 public schools.
“If you’re a district that’s sailing along, everything is fine, and now all of a sudden you have two mandates – one from mom and one from dad – what do you do?” says Jeff Nash, a spokesman for the Chapel Hill-Carrboro School District, in North Carolina. “And it’s not like they’re talking about two different shades of blue. One wants blue, the other red.”
But there’s also mounting evidence that many schools have begun to address the transgender bathroom issue quietly and compassionately, often expanding rights for transgender kids without raising much ruckus from the community – and sometimes leading an education and reform effort on transgender rights from the ground up.
“Over time, we’ve seen a growing track record of successful responses from school communities when [transgender] students step up and say, ‘This is something I need,’ ” says Eliza Byard, director of GLSEN, a gay, lesbian and transgender educational advocacy group.
But she adds that the transgender bathroom issue also highlights a core challenge for US schools: “Are we going to run our schools as compassionate communities or are we going to run them out of fear?”
Perhaps nowhere is that choice more evident than in Charlotte, the 19th largest school district in the US.
Earlier this spring, the North Carolina legislature, with no public input, passed House Bill 2, a law that forbade Charlotte and other municipalities from enacting nondiscrimination ordinances related to transgender rights. It went beyond any other state by explicitly making it illegal to use a public restroom or locker room, at school or other public facilities, that doesn’t correspond to the person’s gender at birth.
But last Monday, CMS Superintendent Clark announced changes to the school’s bullying policy that contradict state law. Along with new training for teachers and principals, the new policy affirms the right of transgender students to choose which bathroom they’d like to use. The district has chosen to ignore the legislative change in HB 2 and instead heed a federal circuit court opinion out of Virginia, which affirmed that the Civil Rights Act covers discrimination against transgender people.
Gov. Pat McCrory, who signed HB 2 into law, lambasted CMS for “purposely breaking state law.”
Charlotte epitomizes how “this has become a huge battle between state and federal power,” says Angela Mazaris, the director of the LGBTQ Center at Wake Forest University, in Winston-Salem, N.C. “And schools around the country are now having to navigate it.”
For school officials in Charlotte, the decision focused on an educational mission of ensuring student needs are handled in a loving and compassionate way.
If the Charlotte school district “is going to be about every child, then every child is every child, and that includes transgender students as well as students who come in a variety of faiths and beliefs,” Clark told reporters Monday. “We are deeply committed to every child.”
'Low key' moves in Idaho
Eighteen states already have nondiscrimination laws that mandate that schools not interfere with students’ bathroom choice. Yet laws in North Carolina and Mississippi expressly forbid transgender choice in public facilities. In Texas, Lt. Gov. Dan Patrick last month called the Obama administration’s push to expand transgender rights “the biggest issue facing families and schools in America since prayer was taken out of schools,” and that President Obama’s policy “will divide the country not along political lines but along family values and school districts.”
But in some ways, the divide has been less between school districts than between principals and legislators in state capitals.
In Idaho, Gov. Butch Otter ordered the state attorney general to write a brief in support of the 13 states now suing the federal government over the bathroom directive, calling it a “vast overreach" that "once again shows the federal government's disregard for states' rights and local control of our schools."
Yet many school districts in the rural Western state have been reacting to the directive in a "low-key and matter-of-fact" fashion, reports Idaho Ed News, with many approving new policies that accommodate transgender students’ choices.
In Hailey, Idaho, a small town of 9,000 people wedged in a narrow Rocky Mountain valley, the school board met earlier this month to hear a proposed change to the student handbook that would allow transgender students to choose which restroom to use. Sparked by a memo from the Idaho School Boards Association last summer, a group of students began working on an explicit transgender rights policy.
According to the Idaho Mountain Express newspaper, resident Ron Brown said the proposed policy would violate privacy rights and could open the district up to legal liability. “School districts must ensure students may use locker rooms without fear of exposure to the opposite sex,” Mr. Brown said.
At the same meeting, a transgender student who just graduated, Shannon Robertson, testified that, “I didn’t feel safe” at school, but that the policy would have helped ease that feeling.
Teresa Gregory, a building administrator who worked with students to craft the proposed policy, told school board members that the stakes for gender-questioning youth in a small conservative town are huge, especially given Idaho’s higher than average youth suicide rate.
“I told them, ‘Please understand that this is a profound moment for you as a school board, that you won’t always hear people speaking so clearly about identity and coming out in a community that may not know that they are something other than what people think they are,’” she says.
Even as they’re proving to be centers of reform on gender identity issues, schools are also places where transgender students historically have faced a barrage of challenges from fellow students and, at times, administrators, writes Erin Duran, the associate director of the LGBT Resource Center at Syracuse University, in an email. After all, 50 percent of transgender students say they’ve experienced discrimination, sometimes at the hands of school officials.
One Kentucky principal
But some lessons may be gleaned from school districts whose practices already jibe with the new federal directive. A common thread is that many districts have made in-house changes, often precipitated by students themselves. Many schools, even in conservative parts of the country, have adopted the kind of guidelines now being promulgated to all US schools by the Department of Education.
Two-and-a-half years ago, Thomas Aberli, the principal of Atherton High School in Louisville, Ky., was approached by a transitioning student who wanted to use the bathroom appropriate to their new identity. At the time, Mr. Aberli, a veteran administrator, says he was taken aback. “It was a brand-new concept to me,” he says in a phone interview.
After reviewing court cases and guidance from national school board associations, “it became very clear to me that gender identity is a real, living experience for these children,” he says. “So then the question became: How do you apply common sense to a relatively uncommon issue?”
In his case, after a lot of deliberation, he made an executive decision, per a Kentucky law that allows principals and a local school council to determine “use of school space,” to allow the student to use the bathroom that corresponded with their gender identity. Later, about 200 people packed into a meeting of the site-based decision making team – made up of parents and teachers – to discuss what had become a controversial decision statewide. The school-site committee voted to uphold Aberli’s decision.
“Since implementing the policy that’s inclusive of gender identity as a real thing, it turns out we have more than one kid, in fact over half a dozen kids" to whom it applies, he says. “And we’ve had zero [negative] incidents.”
Last year, a state senator introduced a bill to reverse the decision of what some critics called the “renegade principal” at Atherton. The bill passed the Republican-held Senate, but failed, by a narrow margin, in the Democratic-majority House.