Jenison 'Tone Deaf' on Title IX Issue

JAY KAPLAN

On May 30, the 7th Circuit Federal Court of Appeals issued a great decision for transgender students. Too bad Jenison Public Schools isn't paying attention to it. Granted the 7th Circuit covers the states of Illinois, Indiana and Wisconsin, but decisions from Court of Appeals can be informative for other states and school districts, like Jenison to follow. Whitaker v. Kenosha Unified School District says that Kenosha Schools cannot bar Ash Whitaker, a transgender male student, from using the boys' restrooms at his high school- that to do so violates Title IX, the federal law that prohibits sex discrimination in public education. By requiring Ash to use a bathroom that does not conform to his gender identity, the school district punishes him for his gender non-conformance, which is sex discrimination.

Furthermore, by engaging in this discriminatory conduct, Kenosha schools, as government entity, is violating the equal protection guarantees under the U.S. Constitution for Ash and other transgender students. Applying a heightened constitutional scrutiny on this equal protection claim (instead of the more deferential rational basis test), the Court found that the school district failed to demonstrate that denying Ash access to male restrooms "serves important governmental objectives."

Kenosha defended its bathroom policy by claiming it needs to protect the privacy rights of all students. However, the Court found that a transgender student's presence in a restroom provides no more a risk to other students' privacy rights than that of cisgender students using the same restroom. The Court noted that the District already has rules and policies to address the possible incident of an overly curious student trying to sneak glances of his or her classmates performing bodily functions.

"Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect their privacy and those who have true privacy concerns are able to utilize a stall."

The 7th Circuit's opinion is both sensitive to the interests and concerns of transgender students as well as a sensible reading of civil rights law. If only this common sense would be followed by the Jenison Public Schools. They have told Flynn Suttorp a transgender male student that he can only use one gender neutral restroom at school, the nurse's bathroom in the school office, a staff bathroom in one of the hallways, or the girls' bathrooms. The reason for this policy is that the district fears that some parents may complain and or that some cisgender male students might feel uncomfortable having a transgender student in the same bathroom with them. Why does this questionable rationale sound suspiciously familiar? Recall in the film, "Hidden Figures" where African American female employees at NASA were singled out and relegated to use the "colored restrooms" located much less conveniently on the campus, because some of their white colleagues might complain or feel uncomfortable using the same restrooms as them. The blatant message to these women that they were not to be valued or treated the same as their white co-workers.

Jenison's policy plays into the fears and ignorance regarding what it means to be transgender. Flynn Suttorp, who was incorrectly assigned the female gender at birth, experienced terrible struggle and pain until he was finally to be his true authentic self - a boy - at home and in school. His use of the communal restrooms are for the same purpose as any other student. And yet he has been singled out and told by his high school that he not to be accorded the same dignity as other students. He is somehow "less than" because he is transgender. The shame, stigma, and inconvenience caused by the district's bathroom policy makes him feel unwelcome at school and uncomfortable using school bathrooms.

It shouldn't matter that Jenison, located west of Grand Rapids, is a "conservative" community with traditional values. Treating people fairly is a pretty damn traditional and some would say conservative value. Complaints and fear of community backlash have never been legal justifications for discrimination. And for those cisgender kids who are uncomfortable, why can't they use the three gender neutral designated bathrooms?

The 6th Circuit Court of Appeals (which covers Michigan) will be hearing the appeals of two federal district court decisions that have held that Title IX prohibits schools from denying transgender students to use bathrooms in accordance with their gender identity. Perhaps the 6th Circuit will provide Jenison with the long overdue impetus to do the "right" thing regarding transgender students.

Alas, for now Jenison continues to remain tone deaf on this issue, apparently oblivious to the harmful message it is sending to all students in the District, especially Flynn Suttorp.

Jay Kaplan is the LGBT Legal Project Staff Attorney with the ACLU of Michigan. Connect with him at http://www.aclumich.org.
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