It is the most basic need any student has during the school day: using the restroom safely and comfortably when you need to. It is the first sign of independence before young children enter preschool and it follows them throughout their whole schooling.
And yet, that almost became more difficult for transgender students to do in South Dakota. The state’s legislature recently passed a bill that would require public school students to use bathrooms and locker rooms that correspond to their gender assigned at birth, defined in the bill as “a person’s chromosomes and anatomy as identified at birth.” South Dakota’s Governor Dennis Daugaard vetoed the bill but if he had not, transgender students would have been forced to use bathrooms and locker rooms that do not correspond to their gender identity.
South Dakota is the first state in the country to come close to passing this legislation but it sets a disturbing precedent for other states and there are many on the horizon. More bills like South Dakota’s are making their way through state legislatures. A Human Rights Campaign (HRC) report reveals that 23 of the 44 anti-transgender bills filed this year are aimed at transgender children in schools and involved in school sports.
The state’s law is in direct conflict with the U.S. Department of Education and Department of Justice’s interpretation of Title IX law which prohibits discrimination on the basis of sex in any education program or activity that receives federal funds. "Treating a student differently from other students because his birth-assigned sex diverges from his gender identity constitutes differential treatment on the basis of sex under Title IX." Even proponents of the South Dakota bill acknowledge that school districts that implement it will probably be sued.
It’s not all bad news. In 2013, California enacted the first comprehensive statewide law to protect transgender students’ right “to participate in sex-segregated programs, activities and facilities” based on their gender identity. In 2014, the New York City Public Schools instituted a set of comprehensive Transgender Student Guidelinesincluding privacy, discrimination/harassment, official records, names and pronouns, restroom and locker room accessibility, etc.
All students need a safe, respectful and inclusive learning environment where they can learn and thrive emotionally, socially and academically. This means—at the minimum—that young people and school staff interact with each other in respectful ways; that there are written policies to address harassment and bullying and those policies are equitably and consistently enforced; that students are embraced for who they are and their identity is reflected and respected in a variety of ways during the course of their schooling experience. And it should go without saying that their basic needs and rights should be taken care of.
When it comes to transgender and gender non-conforming students, these bathroom policies do the polar opposite and put these students at increased risk of attack, abuse and bullying. Thomas Lewis, a transgender high school student in South Dakota, says that the bathroom law “creates more stigma” and conveys this message to students: “You’re so different, in a bad way, that you need your own bathroom, your own locker room, your own shower situation.” We know that throughout their school day, transgender students are more likely to hear negative remarks about their gender expression (90%), to be verbally harassed (89%), to be physically harassed in school (53%) and to skip class or a whole day because they feel unsafe or uncomfortable (47%). These numbers should startle all of us.
To protect the rights and safety of transgender students, we need to go way beyond their bathroom needs. The best and most comprehensive laws, policies and guidelines focus on three general areas: (1) harassment and bullying of transgender and gender non-conforming students, (2) dealing with gender-segregated spaces in school such as bathrooms, locker rooms, and line formations and (3) dealing with records and rules such as names/pronouns, official records, identification, privacy and dress codes.
As a country, we need to be pushing ourselves and our schools to enact policies and practices like these to protect and affirm our transgender students.