VOL. 131 | NO. 105 | Thursday, May 26, 2016
View From the Hill
Legislators Sweating the Small Stuff
By Sam Stockard
My late father kept a paper weight on his desk at home that read: “Don’t sweat the small stuff.”
Well, we’re sweating the small stuff – from the federal government down to the states – with this harangue over transgender bathrooms.
In a country in which college graduates are saddled with billions in student debt and in cities such as Nashville where a fourth of the public school students are classified as English language learners, the feds and legislators are having a literal pissing contest over transgender bathroom rules.
After spending a good deal of energy discussing whether to require public schools students to use restrooms and locker rooms based on their sex at birth, the Tennessee General Assembly dropped the matter in the waning days of the 2016 session. The bill’s sponsor, Rep. Susan Lynn, a Mt. Juliet Republican, seems to have suddenly realized local school systems are handling the matter on their own.
Though most onlookers figured the matter would come back in the 2017 session, the ACLU and Obama administration apparently couldn’t leave well enough alone.
Wrestling with North Carolina’s new law requiring students to use the restroom based on their birth sex, the U.S. Department of Education and Department of Justice sent out a guidance letter to school systems across the nation telling them how to work with transgender students in conjunction with Title IX dealing with sex discrimination.
Days later the ACLU of Tennessee filed a complaint against Sumner County Schools based on the way one school is handling the needs of a transgender student, requiring the child to use either a faculty restroom or one for special needs students.
If the feds follow through and withhold federal funds, Tennessee’s General Assembly is ready to either sue the Obama administration or hold a special session on legislation to go to court for school districts – or both.
At least the House is.
House Republican Caucus Chairman Glen Casada of Williamson County is obtaining signatures from the body’s 73 Republicans in an effort to pass legislation this summer. Two-thirds vote by the House and Senate would be required for a special session, since Gov. Bill Haslam is reticent to pursue legal action.
“I think we need to go into special session for one thing and that’s to defend our schools against such lawsuits as these,” says Casada.
He contends the ACLU’s agenda, based on the federal directive, is to allow young men and women to play on the same sports teams, use the showers together and share restrooms – at least based on students’ gender identity.
“And it’s just foolishness,” Casada says.
The Senate is showing nearly the same outrage as the House, with its leaders early on threatening some sort of legal action or legislation depending on the federal Education Department’s next move on the ACLU complaint.
But Lt. Gov. Ron Ramsey says the Legislature doesn’t need a special session, and it certainly doesn’t need to join the North Carolina lawsuit.
Attorney General Herbert Slatery says his office already has statutory authority to help defend a lawsuit against Sumner County, thus no need to gather at the Capitol this summer, Ramsey says.
Ramsey says he’s also talked to several legal authorities about getting involved in the Carolina tussle, including Senate Majority Leader Mark Norris.
“We don’t really have any standing in that suit because we don’t have a statute to defend. We didn’t pass anything,” Ramsey explains. “He says he doesn’t see how we’d have any standing to join that lawsuit. So I don’t think so.”
Haslam is keeping his powder the driest, the governor’s office saying he’s aware of the ACLU complaint and will assist Sumner County if an investigation commences “because the governor firmly believes decisions on sensitive issues such as these should continue to be made at the local level based on the unique needs of students, families, schools and districts while working closely with the local school board counsel.”
No doubt, hardcore conservatives are calling Haslam a liberal weenie because he’s not enthused about getting into a legal battle with the Department of Justice.
Then again, Haslam allowed a resolution to take effect enabling Tennessee to file a lawsuit against the feds over their refugee resettlement program.
In addition, Haslam signed a bill allowing therapists to refuse to counsel people based on strongly held beliefs – typically considered a way to avoid counseling gay people – in spite of opposition from the American Counseling Association, which has since canceled a conference planned for Nashville.
But the governor is very aware this bathroom matter will be settled through legal action, since North Carolina set the tone for the argument, overturning a Charlotte ordinance for transgender students, and Texas is likely to follow.
In light of that, Democratic Sen. Jeff Yarbro of Nashville sees no reason for Tennessee to sue, saying “there’s no upside” to litigation here. And while acknowledging the General Assembly could go back into session this summer, Yarbro says, “I think the Legislature would be well-advised to watch closely what’s happening in North Carolina with the loss of business and the conflict that’s happening there.”
Although school systems across the state say they’re taking care of situations with transgender students already, Tennessee and North Carolina appear to be caught off guard on this matter, at least their legislatures do.
In the federal directive sent out a couple of weeks ago, the Department of Justice included examples of how school systems nationwide are accommodating students.
It’s tricky, to say the least.
For the most part, school systems are encouraged to talk to parents and the student before deciding how to treat the child based on gender identity, with some students making a transition over the summer break and others undergoing a change in the middle of the year.
A few Tennessee legislators say such students are suffering from a disorder. Apparently, that’s enough to send them to special needs restrooms.
But the Los Angeles Unified School District policy notes “there is no medical or mental health diagnosis or treatment threshold that students must meet in order to have their gender identity recognized and respected. …”
Alaska’s Anchorage School District’s guidelines note being transgender “involves more than a casual declaration of gender identity or expression but does not require proof of a formal evaluation and diagnosis. Since individual circumstances, needs, programs, facilities and resources may differ; administrators and school staff are expected to consider the needs of the individual on a case-by-case basis.”
Although they could be the object of ridicule or bullying, which is clearly frowned on by federal regulations, transgender students aren’t guaranteed to have parental support.
Massachusetts’ education department points out, “Some transgender and gender non-conforming students are not openly so at home for reasons such as safety concerns or lack of acceptance.” It encourages school personnel to talk to the student first before discussing the matter with a parent or guardian.
Openness and confidentiality also come into play, requiring schools to walk a tightrope. Even calling the student by their preferred name or pronoun can be a minefield of sorts. The guidance letter points toward examples used in New York, Washington, D.C., and Kansas City as methods for recognizing name changes and gender identity.
More pointedly, Washington state guidelines already allow students to use restrooms consistent with the gender they use at school, but it also makes restroom and locker room adjustments by offering all students alternative facilities.
Folks who believe boys and girls should use restrooms based on their genitalia say it’s just plain common sense. Not so fast.
D.C. has a school LGBTQ liaison who will work with students to come up with solutions if they feel “discomfort.”
At one high school in New York, a principal put up a curtain for a student who identified as a girl but still felt uncomfortable in the girls’ locker room.
When it comes to athletics, the Rhode Island Interscholastic League says all students should be allowed to participate in sports based on their gender identity.
And the list goes on and on, showing the United States is already handling transgender students from coast to coast. It’s a miracle we haven’t sunk into the ocean, though some climate experts say the water level is rising.
The final analysis
Of course, Tennessee is not California or New York, and the majority of Tennesseans don’t want it to take on an anything-goes attitude.
Admittedly, for an old-schooler like me, a lot of this stuff is a little on the odd side. When I was in high school, most of the basketball team took showers every day after practice and road games – except when the showers had science experiments growing on the floors. Otherwise, we had to ride the bus back home for about an hour stinking to high heaven.
The locker room was a refuge, too, kind of a clubhouse where the guys could crack jokes, pull pranks, even initiate young players with a bucket of ice water. It was the same in college.
When they started allowing female trainers and reporters into men’s locker rooms, long after my playing days, the party was pretty much over. As a result, people made adjustments.
But this concern about high school showers is overblown. The kids are so modest anymore they don’t even take showers after practice and games. At least they didn’t when I was coaching AAU basketball back in the ’90s.
And girls have wanted to play on boys’ athletic teams for years. If they’re good enough, so be it. Southeastern Conference football doesn’t seem to have suffered because a few girls kicked on the high school football team.
How boys might play on girls’ basketball or softball teams could be a bigger problem, one that will have to be solved another day.
As far as the threat, though, of men dressing up as girls and going to women’s restrooms to sexually assault someone, they could try to do that regardless of rules. We already have laws against men and women sexually assaulting girls and boys, but a lot of perverts, including many in churches, have been sidestepping those for centuries.
For middle-agers like me, things just aren’t the same three decades or so after we got out of school. Certainly, we want to protect our children, and, no, boys and girls don’t belong in the same shower, sexual identity or not.
When you look at world history, things have never stayed the same. People adapt and they move on. Getting torn up about how boys and girls use a restroom seems to be misdirected energy, and for the most part our schools are handling it.
Even if this federal guidance letter seems to be an Obama overreach, it set no new rules. The 10th Amendment dealing with states’ rights might not address transgender students or bathrooms, but if this argument reaches the Supreme Court, and Tennessee climbs on for the ride, the Volunteer State is likely to lose, just as with same-sex marriage.
Our legislators need to find a new battle and stop sweating the small stuff.
Sam Stockard can be reached at firstname.lastname@example.org.