Transgender students’ use of bathrooms and locker rooms has become an increasingly prominent issue, with a number of school districts adopting policies that make it clear that students may use facilities corresponding to their gender identity. Yet even in New Jersey, one of the most progressive states on this matter, assurances that districts will abide by state anti-discrimination statutes sometimes come only after community battles and criticism from conservative organizations.
The issue has gained new attention nationally in recent weeks, as North Carolina has come under intense criticism and economic boycott for passing a law that requires people to use bathrooms that match the gender on their birth certificates. The federal courts also weighed in last week, ruling in a Virginia case that the Title IX law banning gender discrimination in schools also protects the rights of students to use bathrooms corresponding to their gender identity.
Earlier this month, when the board at Pascack Valley Regional High School in Bergen County approved a policy on bathroom use, locker rooms, sports teams, and other issues, it heard withering criticism from conservative advocacy organizations and some parents and students.
Aaron Potenza, director of programs at Garden State Equality, said at least 25 districts have policies addressing the rights of transgender students. Princeton passed a policy in December and others include Pequannock, Bridgeton, Shore Regional, Rumson-Fair Haven, Jackson, Hazlet, and Ocean Township. Additional districts are considering policies, including Toms River, which introduced guidelines in December but put them hold after an evangelical group created a petition opposing the measure.
Many more districts do not have policies, however. While discrimination on the basis of gender identity or expression was outlawed by a 2007 amendment to the state Law Against Discrimination, implementation of the law has been spotty. Potenza said some schools attempt to restrict bathroom use when a transgender student raises the issue, or they fail to use a student’s chosen name or pronoun. District officials may not be even aware of the law’s requirements and ramifications. Crafting a policy serves as a learning opportunity and a chance to address a range of issues beyond those that grab the headlines, Potenza said.
“The hysteria has been around the bathrooms,” he said. “You can easily then think the policy is about the bathrooms. But the policy is about names and pronouns, participation in sports, privacy, and confidentiality, and it’s about educating school administrators and teachers about gender identity.”
Students’ rights could be better protected and districts’ confusion cleared up if the state Department of Education encouraged them to approve policies and gave them guidance in doing so, he said.
“You have this patchwork, this piecemeal approach, and schools that are really not complying with the law,” Potenza said. “In New York City, the department of education said this is the federal law, this is state law, here’s how we interpret it, here’s what we expect from schools, here’s a whole host of things that could be thought of as policies, and then they also said, you need to adopt your own policy. The New Jersey Department of Education really needs to do that.”
A DOE spokesman said district policies are crafted at the local school-board level and the agency does not itself have a policy on transgender rights, though state education regulations have a chapter dedicated to equity issues, including on gender identity.
He noted that in 2004 the Gay, Lesbian and Straight Education Network (GLSEN) ranked New Jersey the top state in ensuring safety of all students, regardless of sexual orientation or gender identity. However, a 2013 national survey by GLSEN concluded that “New Jersey schools were not safe for many lesbian, gay, bisexual, and transgender (LGBT) secondary-school students,” and many students did not have access to needed school resources.
The GLSEN survey found many LGBT students also lacked protection by comprehensive anti-harassment policies, despite the signing of the state’s anti-bullying law in 2011. The law requires speedy investigation of school-bullying incidents and specifically protects students from bullying because of their perceived or actual gender identity and expression.
Local school boards can look for guidance from the New Jersey School Board Association, which recommends that districts adopt policies and offers a model policy they can adapt to their needs. NJSBA spokesman Frank Belluscio said the model was developed in fall 2014 following member requests, and is based on New York City’s policy.
“It is our most frequently requested sample policy over the past year or so,” Belluscio said. “There’s a high degree of interest.”
The proliferation of gender-identity policies can itself lead a district to adopt one. Sometimes the need comes to a district’s attention when it buys a comprehensive school-board policy manual and officials come across the section on transgender rights, Potenza said.
Students who are questioning their identities or otherwise struggling can also benefit from LGBT student groups or school counseling programs, but these are not present in every school, said Carol Watchler, a retired high school teacher and co-chair of GLSEN’s central New Jersey chapter.
Some counseling offices have started support groups, which she called “very, very positive” for the students, but these depend on counselors deciding to act, she said. Students may take the initiative and start a club, though concerns about exposing their sexual or gender identity may inhibit them.
“Sometimes a school could really use one of these, but there just hasn’t been the right (situation) of a student being ready to step forward and say, let’s get that going,” Watchler said. “In other situations the administration will say, you need to find an advisor, and the students just can’t find a person who either has the time or feels like they have a good grasp of the issues — although I would say any teacher who cares about students could quickly learn the things they need to know in order to be sensitive to what’s going on in the group.”
The increased attention and cultural tumult over transgender identity has been attributed to a number of factors, such as former Olympian Caitlyn Jenner’s revelation of her transition and the popularity of television shows with transgender characters, like Amazon’s Transparent. Since the U.S. Supreme Court settled the gay marriage issue last year, strengthening transgender rights has become a priority for LGBT advocacy organizations and a focus for funding, Potenza said.
When Garden State Equality announced the appointment of its new executive director Christian Fuscarino last week, it emphasized the importance of transgender issues to the organization’s agenda.
“GSE will be working in the coming weeks and months to build broad-based coalitions with all those who are facing discrimination,” the group said in a press release. “They will also work in a bipartisan manner to ensure the rights of transgender individuals are protected in New Jersey.”
The activity in school districts specifically was spurred by the U.S. Department of Education’s expansion of the Title IX law in April 2014, Potenza said. The law, which was originally created to create opportunities for female students, can result in loss of federal funding for districts that discriminate. Its protections were expanded to cover transgender people, leading to lawsuits against schools in California and Illinois over bathroom and locker-room rules, federal investigations that found violations, and the establishment of gender identity policies in those districts, Potenza said.
The U.S. DOE says the outcome of those cases shows that Title IX protects transgender kids, but Potenza said the federal agency still needs to offer school administrators guidance on what they need to do to comply with the law. The guidance has been drafted but the agency has so far not released it, he said.