Introduction
Communities and legislators around the nation have in recent years been engrossed with the highly charged debate concerning transgender rights. Although the issues confronting the transgender community are numerous, the discussion concerning their rights and civil liberties often boils down to the question of their use of sex-segregated public facilities, and especially, public restrooms in addition to changing rooms, locker rooms and so on (Barnett et al. 233).
The Dilemma
The common dilemma herein is: should transgender individuals be obligated to use a restroom that corresponds to their biological sex or should they be allowed to use one that aligns with their gender identity? In light of this civil rights issue, state governments have weighed in, resulting in a whole range of diverse laws and policies governing the access to bathrooms by sex or birth-assigned gender. Some states have enacted laws allowing transgender persons to use bathrooms that match their gender identities while others prohibit the use of restrooms that do not correspond to the sex that one was assigned at birth. Hasenbush et al. noted that 18 states and Washington D.C had adopted laws that prohibit against discrimination based on gender identity issues (2). These laws apply to concerns regarding housing, employment, and public accommodations. Of interest in this paper, however, is the California "Assembly Bill 1266 (AB1266)," also referred to as the "School Success and Opportunity Act." Despite public controversies regarding this law, it has resulted in policy changes that promise to revolutionize the current view of transgender students in schools around the state.
Assembly Bill 1266
The Assembly Bill 1266 is a Californian State law which aims at preventing discrimination against transgender and other gender-nonconforming students with respect to sex-segregated facilities, programs, and activities in school (Curtin 3). Although both federal and state laws prohibit against gender-based discrimination, Curtin notes that the Assembly Bill 1266 marked the first time that a state had mandated, by way of a statute, such a deep right to expression among transgender students (3). Initially, existent laws already prohibited public schools from discriminating students by characteristics including gender, gender identity, and gender expression. Additionally, existing laws also required the provision of physical education activities to pupils of each sex in the case where participation in certain physical activities requires pupils of the same sex as noted in Garcia’s article (243). AB1266 thus added more provisions that permit students to join teams that correspond to their perceived gender identity in both in both interscholastic athletic activities and physical education. More importantly, the statute allowed students to use sex-segregated facilities such as restrooms and locker rooms that align with their self-perceived gender identity, the gender listed in the school records notwithstanding (Curtin 5). Therefore, Curtin noted that AB1266 mandated school districts and county offices of education with the responsibility of adopting policies and administrative regulations that prohibit against discrimination or harassment of transgender and gender-nonconforming students. Additionally, these regulatory bodies were required to address the issue of suitable accommodations, provide safe environments in which students can feel free to report any cases of harassment and also, establish consequences for those who violate these regulations (6). All of these were geared towards the noble goal of promoting safe and non-discriminatory school environments where equity for all students is upheld regardless of their gender identity.
Debate and Criticisms
There exist two sides of the divide in the debate surrounding enactment of the "School Success and Opportunity Act" as well as other laws and policies that seek to protect people from discrimination on the basis of their perceived gender identity or gender expression. First off, concerning the issue of restrooms, the heart of this matter is pegged on the discomfort that most tend to feel while in the confines of these private rooms. Indeed, being mindful of what happens in a bathroom, Archibald noted that most people often feel vulnerable in all sorts of ways; a type of vulnerability that we, perhaps, do not feel in other places (1). As such, one of the concerns raised by conservative critics of AB1266 is that permitting trans students to use the bathroom that best matches their gender identity may compromise on the safety and privacy of other students (Hasenbush 3). The argument herein is that cisgender students may claim a transgender identity so as to gain access to the restrooms of the opposite gender and while inside, commit acts of sexual assault or voyeurism. Barnett et al. also noted that critics base their arguments on the notion of gender identity being naturally determined by our anatomical sex so that, in this case, their presupposition is that, claiming a gender identity which is inconsistent with your birth-assigned sex is perhaps a mental illness or just a fabrication (234). Besides, as we all probably know, the diagnosis of gender dysphoria disorder is based mainly on self-reported transgender experiences or corresponding information from family and relatives, previous healthcare providers and other relevant people. Therefore, according to critics, since there are no instruments that can conclusively diagnose transgender identity or similarly, a gender screening tool for the same purpose, we cannot ascertain whether one is just malingering a transgender identity (Barnett et al. 235). Following this argument, these critics find no need to accord the privilege of self-determined bathroom access to trans individuals. Finally, Barnett et al. noted that some critics argue that trans-inclusive policies are against the moral fabric which forms the foundation of the nation and as such, such liberal conspiracies should not be allowed (235). These, among other reasons, explain the divisive public debate concerning AB1266 and other similar laws and policies.
Countering the Arguments
However, research has consistently discounted most of the claims mentioned above. For instance, while the claim on safety and privacy of other students may have been raised from a legitimate point of concern, the study by Hasenbush and colleagues showed no statistically significant evidence between bathroom-related sexual crimes and transgender-bathroom access (9). The researchers reported that there were no reported cases of trans individuals harassing other bathroom occupants among several school districts following their implementation of policies protecting trans individuals. Paradoxically, most surveys have shown that in most cases, it is trans individuals who are often harassed or disrespected within public facilities. For instance, Hasenbush et al. cited a survey by the "Lesbian Task Force" and the "National Center for Transgender Equality Gay" which reported that up to 54% of transgender students are assaulted or harassed in school because of their gender identity (10). Additionally, critically speaking, Archibald noted that the issue of cisgender persons feigning transgenderism to take advantage of the policy and enter into the opposite gender's washrooms may be discredited by the fact that, a person who is determined to commit a sexual crime will not be deterred by rules preventing them from entering within the confines of the restrooms of another gender (1). Therefore, discounting important laws such as AB1266 and their associated policies over such unsubstantial claims would be self-defeating of us.
Additionally, Barnett and colleagues noted that an overwhelming majority of mainstream medical organizations reemphasize on the need to recognize gender dysphoria as a medical condition than the perceived notion of mental illness (237). In light of this, typifying transgender identity as a mental illness is considered disrespectful and is a violation of the rights of trans individuals. In most cases, being a transgender does not cause dysfunction. Instead, it is our restrictive social norms coupled with social ignominy that hinders trans individuals from articulating their perceived gender identity thus causing them anxiety and distress that could be disabling (Barnett et al. 237). Therefore, instead of branding trans individuals using derogatory terms such as those among people who think that they have a mental illness or they are deluded and whatever other bad names, we ought to support them and treat them in a manner that is consistent with their gender identity. Policies that prevent discrimination against these individuals is definitely a step in the right direction towards being supportive of this group of people. More importantly, allowing them to use the restroom that aligns with their gender identity is an essential part of their process of transitioning and thus should be encouraged instead of being rebuked. Additionally, on a side note, Curtin noted that enactment of AB1266 meant that transgender and gender non-conforming students now have a fair opportunity to participate equally in all school activities and programs (5). This comes with the documented positive effects of athletics and physical education classes on a student's social, physical and emotional development and should thus be encouraged.
Conclusion
As the visibility of trans individuals continues to heighten in our daily lives and popular culture, it means that we need to have strong and comprehensive nondiscrimination laws which will ensure that the dignity of transgender people is maintained. AB1266 is certainly a right step towards that direction. Since laws alone might not protect these individuals, public awareness to foster cultural acceptance of trans individuals as normal persons would also come in handy.
Works Cited
Archibald, Catherine Jean. "Transgender bathroom rights." Duke J. Gender L. & Pol'y 24 (2016): 1.
Barnett, Brian S., Ariana E. Nesbit, and Renee M. Sorrentino. "The Transgender Bathroom Debate at the Intersection of Politics, Law, Ethics, and Science." The journal of the American Academy of Psychiatry and the Law 46.2 (2018): 232-241.
Curtin, Jenn. "Help Protect AB 1266-The California School Success and Opportunity Act." Equality Federation. Equality Federation 19 (2013).
Garcia, Emeline. "AB 1266: The school success and opportunity act or a violation of the constitutional right to privacy." U. La Verne L. Rev. 35 (2013): 243.
Hasenbush, Amira, Andrew R. Flores, and Jody L. Herman. "Gender Identity Nondiscrimination Laws in Public Accommodations: a Review of Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms." Sexuality Research and Social Policy(2018): 1-14.
