A DISCUSSION OF LAW AND JOURNALISM

Can School Tell Tot Where to Sit on Pot?

By Aleksandra Kravets

Born with male organs, Coy Mathis began identifying as a girl at the tender age of 18 months.

Today she is six years old, and while attending Eagleside Elementary School in Colorado, was using the girls’ restroom for over a year; the Fountain-Fort Carson School District 8 policy states that students “shall have access to the restroom that corresponds to their gender identity consistently asserted at school.”

Then, in December, the district sent a letter to the Mathis family, stating that, “as Coy grows older and his male genitals develop along with the rest of his body, at least some parents and students are likely to become uncomfortable with his continued use of the girls’ restroom.”

The district wants Coy to use the boys’ restroom, or barring that, a gender-neutral restroom (that it concedes is not near the others).

The Mathis family is suing. LASIS investigates.

Michael Silverman, the Executive Director of the Transgender Legal Defense and Education Fund, filed a complaint on behalf of the Mathis family with the Colorado Civil Rights Division. This is the first case to challenge a restriction on a transgender student’s bathroom use under Colorado’s Anti-Discrimination Act, which prohibits gender-identity discrimination in public schools.

Mr. Silverman argues that, “by forcing Coy to use a different bathroom than all the other girls, Coy’s school is targeting her for stigma, bullying and harassment.” W. Kelly Dude, the school district’s attorney, states that, the district was respecting the law: Coy attends class as all the other students, is permitted to wear girls’ clothes and is referred to as the parents have requested.” But, he continues, the law doesn’t mandate that the school allow Coy to share a bathroom with the girls. That, he says, is going too far, and was not specified in the statute.

The state’s Civil Rights Division determines whether a student’s rights have been violated. If either the family or the school district disagrees with the ruling, it may be appealed in court. And it is difficult to predict what will happen in this case, because legal standards remain murky and vary drastically from state to state.

For example, last year, in Doe v. Clenchy, a Maine court held that a school district did not violate a transgender student’s rights under the Maine Human Rights Act when she was told she could no longer use the girls’ restroom. While the judge expressed that the law “casts a broad stroke where one more delicate and refined is needed,” the decision to segregate restrooms by sex was expressly permitted by regulation. The decision is being appealed.

Two other courts have held that restricting restroom usage on the basis of biological sex didn’t violate transgender individuals’ rights – even though no state regulation expressly permitted it.

In Goins v. West Group, the court found that that an employer’s enforcement of a policy on restroom use according to biological gender (along with the offer to the transgender plaintiff-employee of a single occupancy restroom) did not violate Minnesota’s discrimination statute. Similarly, in Hispanic Aids Forum v. Estate of Bruno, the New York Supreme Court denied relief to a tenant who asserted that a lease provision requiring him to prohibit transgender persons from using restrooms of their gender identity amounted to discrimination. Both decisions were based on the view that restroom designation by gender is a traditional practice that is not grounded on sexual orientation discrimination

While New York bars discrimination based on sexual orientation, gender-identity is only protected within the realm of public employment. Colorado goes further, barring gender-identity discrimination in employment, housing, and public accommodations. Colorado is one of 10 states that specifically prohibit gender-identity discrimination in public schools.

Currently, over 100 cities and 16 states (and the District of Columbia) offer some form of legal protections for transgender people, many of which extend to schools.

In November 2012, Colleen Francis, a 45 year-old transgender student at a Washington college was asked by police to leave the women’s locker room after exposing male genitals to high-school girls using the facility.

Ms. Francis was indignant. “This is not 1959 Alabama … We don’t call police for drinking from the wrong water fountain,” she said. But David Hacker, Senior Counsel for the Alliance Defending Freedom was unmoved, and stated firmly that “little girls should not be exposed to naked men, period.”  Ms. Francis was not permitted back into the women’s locker room.

Many people feel that females, young ones especially, have the right to privacy in sex-segregated areas of public nudity. A Helena, Montana non-discrimination ordinance embraces this view and requires facilities designated for one’s anatomical sex to be used where people ordinarily appear in the nude, regardless of gender identity.

For others, public nudity exemptions and restrictive school restroom bans place transgender people in a no man’s land, and possible danger. Using public restrooms when their outward appearance doesn’t conform to common gender expectations puts them at greater risk of being confronted, challenged, or even attacked.

Sometimes, state or county discrimination protections conflict with school policy. In March 2012, the University of Pittsburgh dictated that transgender students could only use bathrooms that correspond to the gender on their birth certificate even though the county identifies one’s gender by how one’s life is lived and how one is perceived by others.

Most states only allow birth certificate changes to gender with sexual reassignment surgery – an expensive procedure. Some don’t permit birth certificate changes at all, such as Tennessee. In January, an anti-transgender “bathroom bill” was introduced there that would have imposed a $50 fine for anyone using a restroom not matching one’s biological gender. It died before passage.

Other states have no anti-discrimination statute at all. Under Virginia’s Dillon Rule, issue local municipalities are prohibited from enacting measures on the issue without the state’s permission.

In states where no protections exist, school districts have become more amenable to solutions that help integrate transgender students when a dispute arises. The Massachusetts Department of Elementary and Secondary Education recommends that transgender students be permitted to use bathrooms that conform to their gender identity. The department’s guidelines state that the discomfort of other students is not sufficient reason to accommodate the transgender student, and that “administrators and counseling staff should work with students to address the discomfort and…foster understanding of gender identity, to create a school culture that respects and values all students.”

But District 8 in Colorado feels differently.  It’s anyone’s guess how the case will turn out, though we think it likely that the Colorado district’s judgment will stand.

In the meantime, unless she is permitted to use the girls’ restroom. Coy Mathis will not return to Eagleside.  She is being homeschooled.

UPDATE, June 23, 2013:  Coy wins!

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