As I reported last year, K-12 schools are becoming ground zero for clashes over LGBT rights. On the one side are those who fear that allowing transgender children to use facilities based on their gender identity—allowing a student who was born a boy but identifies as a girl, for example—violates other students’ privacy rights and threatens their safety. On the other are those who say such rules, even when they prescribe special accommodations, make transgender students vulnerable to harassment and can pose logistical challenges that undermine their academic performance and overall campus experience. Student surveys conducted by the Gay, Lesbian, and Straight Education Network (GLSEN) show that rules barring transgender students from using the facilities of their choice often end up discouraging the students from using them altogether; some of them end up skipping school. GLSEN has concluded that “policies and practices that enforce gender segregation” promote a sense of hostility on campus.
The same arguments are being disseminated in the media as the South Dakota proposal sits on the governor’s desk.
“South Dakota didn’t pick this fight—it was the parents and kids who call our organization every week … trying to maintain the privacy and safety of the people who don’t want to see this happen,” said Jeremy Tedesco, the senior counsel for The Alliance Defending Freedom, a conservative Christian nonprofit that helped precipitate many of the recent transgender-student bills. “We have to find a way to balance everybody’s interests in these equations.” The alliance released a model policy in December 2014 that was distributed to school districts nationwide and looks much like the prospective South Dakota law, including its emphasis on providing separate facilities for “students struggling with their sexual identity.”
The pushback against the South Dakota bill is especially strong because of the national impact it could have in setting a precedent. Missouri and Tennessee are among the states considering similar proposals—and they both have the demographic makeup and political will needed to see them become law. Pointing to the “psychological burden” that such rules impose on trans children, Nathan Smith, the public-policy director at GLSEN, said he worried it “will open the door for other states to actually bring these up and consider these bills as opposed to just tabling them. We’re concerned that South Dakota will be leading the way for a wave of discrimination across the country.”
The one thing opponents and proponents do seem to agree on is that any state that does end up adopting such a law is going to face resistance from the feds. The Obama administration interprets such policies to be in violation of Title IX and has already threatened to cut funding from schools and districts with similar regulations. Illinois’s Township High School District 211, for example, almost found itself in such a predicament after a school denied a transgender student access to the girls’ locker room; the district later reversed its policy, giving the student access to the facility of her choice, after reaching an agreement with the U.S. Department of Education.