North Carolina last week became the first state to set restrictions on the restrooms and locker rooms that transgender students use at public schools after lawmakers included those policies in a bill that passed in a whirlwind one-day special session.
Republican Gov. Pat McCrory acted swiftly to sign the measure—over the protests of lesbian, gay, bisexual, and transgender advocacy groups—setting the stage for potential legal conflicts between the state’s schools and the U.S. Department of Education, which has said that public schools are required to honor transgender students’ gender identity under Title IX of the Education Amendments of 1972.
The legislation drew greater national attention for its other provisions, which nullify a local anti-discrimination ordinance set to go into effect in Charlotte, ban such measures in other cities, and require operators of all public buildings to use a person’s biological sex—defined as the sex indicated on their birth certificate—to determine which single-sex restrooms they can access.
The bill passed the state Senate 32-0 after Democrats walked out in protest. Earlier, it passed the House 82-26.
Privacy Concerns
In a statement that focused largely on the Charlotte ordinance, which was intended to protect LGBT residents from discrimination, including discrimination in which public restrooms they are allowed to use, McCrory said such policies violate the “basic expectation of privacy in the most personal of settings, a restroom or locker room.”
Lawmakers who spoke in favor of the bill said the definition of biological sex is less ambiguous than that of gender identity, and that men with bad intentions might pose as transgender women to gain access to girls’ restrooms if access isn’t limited by biological sex.
But parents, community leaders, and a transgender student told lawmakers the provision in the bill that requires school boards to adopt policies limiting access to facilities would only further stigmatize transgender students, who already struggle with high rates of dropping out of school, suicide, and depression. And the North Carolina ACLU quickly vowed to challenge the measure.
Sky Thomson, a 15-year-old transgender boy, told lawmakers that forbidding him and his peers from using the boys’ restroom “gives bullies all the more reason to pick on us.”
“Imagine yourself in my place: being a boy, walking into the ladies’ room,” he said. “It’s awkward, embarrassing, and even dangerous.”
Thomson’s mother, Deborah Thomson, said that some transgender students avoid drinking water to reduce their need to use the restroom. “On a practical level, telling schools that my son can’t use the appropriate bathroom means that my son’s education will be compromised,” she said.
The new law allows students to use single-occupancy restrooms, but LGBT student advocates have said such accommodations are stigmatizing and amount to unequal treatment.
Uncharted Territory
North Carolina’s law takes its schools into uncharted territory.
Although other states have introduced bills that would limit facilities access in schools, North Carolina’s is the first that has been signed into law. Tennessee’s legislature is currently considering such a bill. South Dakota lawmakers recently passed similar restrictions, but Republican Gov. Dennis Daugaard vetoed that bill, saying it interfered with local control and did not “address any pressing issue concerning the school districts of South Dakota.” Sponsors of the South Dakota measure said they drafted it in response to “federal overreach.”
The federal Education Department has asserted in court and in civil rights guidance to schools in recent years that Title IX’s protections for sex also extend to sexual orientation and gender identity. In November, the department’s office for civil rights found an Illinois district in violation of the law because it would not grant a transgender girl unrestricted access to the girls’ locker room. Under threat of penalties, including a possible loss of federal funding, the district hung privacy curtains in the locker room and agreed to allow the student to use it.
School law experts say the department’s interpretation of Title IX isn’t legally binding. A federal judge in Virginia rejected the interpretation last year in a transgender student’s lawsuit, and a review of that decision is pending before an appeals court.
“The department is committed to protecting the rights of transgender students under Title IX, and will continue to work diligently to ensure that all students receive equal access to educational opportunities in accordance with federal law,” Education Department spokeswoman Dorie Nolt said in a statement.
