Toilet Politics

It was just a couple of weeks ago that Dena, the mother of a 6-year-old transgender girl, felt like she could finally breathe. She no longer had to fear the possibility of her daughter being forced to use the boys’ bathroom at school.

On May 13, the Obama administration’s U.S. Departments of Education and Justice issued new guidelines for K-12 public schools demanding they allow transgender students use the bathroom that matches their gender identity. The joint letter to schools across the country said that transgender students should “enjoy a supportive and nondiscriminatory school environment.”

The guidelines were fueled by an anti-trans law in North Carolina, House Bill 2, which forces transgender people into bathrooms that differ from their gender identity and prohibits cities from creating laws protecting LGBT people. The DOJ has already said that the statute is discriminatory and violates civil rights.

Since her daughter transitioned, Dena’s done a lot of arguing at school about what pronouns and name teachers and staff should use to refer to her daughter. “It’s been a constant battle,” she says. “When boys and girls would get split up for activities or she was told she couldn’t use the girls’ bathroom and had to use the one by the nurses’ office, she would get really depressed and didn’t want to go to school.”

When the Obama administration announced the bathroom guidelines, Dena felt, “We don’t have to fight anymore and [my daughter] doesn’t have to feel like she’s doing something wrong just by being herself.” The feeling didn’t last long.

On May 25, Arizona joined 10 other states—including Texas, Alabama and Louisiana—in a federal lawsuit against the Obama administration’s school bathroom guidelines. Arizona Attorney General Mark Brnovich and Superintendent of Public Instruction Diane Douglas signed onto the lawsuit representing the Arizona Department of Education. The Heber-Overgaard Unified School District is a plaintiff as well. Given that the Obama administration hinted federal funding could be taken away from school districts that discriminate against transgender students, the lawsuit argues this is federal overreach, and it focuses on sorting out who is allowed to enact these type of rules.

“President Obama has no business setting locker room and restroom policies for our schools,” Brnovich says in a media statement. “Deciding how to protect our children and preserve their privacy, while balancing these complicated issues, is best done locally and not by some one-size-fits-all decree from Washington.”

Douglas says transgender students have the right to feel safe, but that it is not up to the federal government to decide what state school districts can or cannot do.

“When Arizona students attend school, they deserve a safe environment that is free from bullying and discrimination, regardless of their gender identity,” she says in a media statement. “I know that our districts and schools have policies in place to ensure that is the case. The fact that the federal government has yet again decided that it knows what is best for every one of our local communities is insulting and, quite frankly, intolerable.”

Dena feels discouraged. She’s cried, a lot. The thought of her daughter having to go into the boys' bathroom wearing a dress terrifies her. “It makes her a target to be made fun of or bullied,” Dena says. “It breaks my heart to think there is so much hate and misconception about this.”

Members of the Tucson-based Southern Arizona Gender Alliance say they are “deeply concerned” by the state’s attempt to stop the federal government from enforcing Title IX protections—a portion of civil rights law that makes it illegal to discriminate on the basis of sex in any educational setting that gets federal funds—for transgender students.

“Today’s actions do not protect the citizens of Arizona. Instead, they put thousands of Arizona’s most vulnerable students at risk of being harassed and marginalized. Many of these students already face difficult and dangerous school environments. Harassment, threats, and actual violence are epidemic in the lives of transgender students,” a SAGA statement says.

Contrary to what Douglas alleges, SAGA says most school districts in Arizona do not have policies in place protecting transgender students. In Tucson, Sunnyside, Tucson Unified and Flowing Wells school districts have added gender identity and expression to the nondiscrimination policies for staff, faculty and students.

“This lack of local policy puts students at risk, and harms the educational environment for those students. It creates undue chaos when such policies are implemented in a reactive manner after an issue arises,” the SAGA statement says.

In November 2015, Arizona joined West Virginia, South Carolina, Mississippi and the governors of Maine and North Carolina in an amicus brief filed with the U.S. Fourth Circuit Court of Appeals, supporting the state of Virginia’s Gloucester County School Board in a lawsuit filed by Gavin Grimm, a transgender teen, over a board policy that required trans students use a separate bathroom than their peers. The brief argues that when Title IX refers to “sex,” it means biological sex, not the “cultural construction of gender or gender identity.” According to the brief, gender alone does not support a Title IX violation.

The court ended up siding with Grimm in April.

Attorney and SAGA’s vice president and general counsel Abby Jensen says the U.S. Supreme Court has held that sex discrimination includes gender discrimination—that applies to Title IX. She says there is no question the federal government has the power to enforce these laws against not only the state but school districts.

“It is a matter of fairness,” says Jensen, who is also a member of Equality Arizona. “Trans people don’t represent any threat of safety to other people. The fact that you are uncomfortable with the presence of somebody [who is transgender] does not allow you to discriminate."

Jensen hopes the lawsuit will be quickly dismissed for lack of standing. Really, the concerns are all theoretical: no school in Arizona has been stripped of federal funds over the bathroom issue.

“The lawsuit filed is bogus,” Jensen says.

If it stands, she’s afraid it will be a long and ugly battle. But she’s confident the federal government’s position will be upheld. Still, “I have no doubt Brnovich is going to continue to push this as long as he can gain any political advantage out of it.”

Planned Parenthood Arizona President Bryan Howard says in a media statement that “everyone should be able to use the restroom that corresponds with their gender identity, and that transgender people, like everyone else, deserve to be treated with dignity and respect.”

“In the past year, we’ve fought to stop the truly appalling rhetoric targeting the LGBTQ community, especially transgender and gender nonconforming people in regards to sex education,” Howard's statement says. “The people behind this lawsuit are going after transgender children, many of whom are already targets of bullying and discrimination. These politicians are pushing a political agenda that promotes hate and harassment, and all over a false idea of who transgender people really are. In January 2016 polling, 83 percent of Arizonans believe that politicians have no business passing legislation that shames LGBTQ people. This is another attack to leave our youth feeling marginalized or ashamed of who they are.”

All Dena wants is for her daughter to be happy and feel safe. If she wants to wear a dress to school, she should. If she has to pee, she should use the girls’ bathroom, without fearing she’ll be harassed.

“I want to raise my child in an accepting, loving world,” Dena says. “The transgender community is under attack. It is sad that this is our world. Ignorant. I am appalled. All my child wants is to be treated the gender she feels. They should not be set apart from everyone else.”