When Laws Solve Problems that Do Not Exist: Transgender Rights in the Nation’s Schools

Time and again research has shown us that schools in which students feel safe and included promote academic achievement and overall student health (see, for example, Greytak, Kosciw, Villenas, & Giga, 2016; Michael, Merlo, Basch, Wentzel, & Wechsler, 2015). Parent networks, community organizations, and school boards nationwide continuously espouse one common goal: to create the safe environments students deserve and to promote the academic, physical, and mental well-being of all members of our educational communities. Although this is certainly an admirable goal, it is far from a reality. Michael and colleagues (2015) have shown, in a review of the pertinent literature, that school policies and directives must better align with this goal in order to establish and maintain safe school environments. For members of our communities that are outside the mainstream culture and outside the now defunct gender dichotomy, these efforts are particularly important. In a report conducted and published by the Gay, Lesbian, and Straight Education Network (GLSEN) nearly all (87%) transgender students have reported being verbally harassed at school and over half (53%) have been physically assaulted because of their gender expression (Greytak et al., 2009).

It is an undeniable shame, then, that battles—legal and moral—are still waged in many local communities and states to undermine the safety of this targeted group of students. North Carolina’s House Bill 2 (HB2, also known as the Public Facilities Privacy and Security Act) was passed in March of 2016 and immediately made national headlines. Two key components of HB2 were forcefully met with opposition by a variety of civil rights groups. The law stipulates, based on biological sex, which bathroom individuals must use in public buildings. Additionally, it overturns existing legislation across the state and bars any future legislation that protects the rights of members of the lesbian, gay, bisexual, and transgender (LGBT) community. Simply put, HB2 made discrimination against the LGBT community legal in North Carolina. HB2 also created a new challenge specifically for transgender women and men in a legislative move the Washington Post called a “cunning trick” (Guo, 2016). Modified from a bill passed in Tennessee designed to protect interstate commerce from capricious local legislation, HB2 was written to ensure that businesses could operate statewide without being burdened by local ordinances and laws that prescribe how they can treat members of the LGBT community. This, combined with verbiage lifted from a variety of model bills in the religious freedom strand of legislation (such as Indiana’s 2015 Religious Freedom Restoration Act, one of several state laws modeled on the federal act of the same name signed into law in 1993 by President Bill Clinton), makes HB2 a potent affront to forward-thinking policies nationwide. This rhetorical “trick” employed by HB2 and a variety of similar policies allows conservative lawmakers and special interest groups to hide behind trade and economic issues—as well as religious “rights” in some cases—in defending these discriminatory pieces of legislation, a move that has proved successful in the past (Guo, 2016). The success of the conservatives in these cases is, of course, a setback to the movement for LGBT rights.

Title IX of the Education Amendments of 1972 prohibits any form of sex-based discrimination in any federally funded educational programs or activities. The Dear Colleague Letter on Transgender Students published jointly by the Departments of Justice and Education states, in no uncertain language, that these protections extend to transgender students in our nation’s schools (Lhamon & Gupta, 2016). HB2 clearly violates this policy, and also disregards the Fourteenth Amendment to the United States Constitution, which guarantees all citizens equal protection under the law. The Dear Colleague letter was published a few months after the passage of HB2, raising questions about whether the North Carolina legislature would have taken this bold step in the face of such a stark proclamation. Attempts by the Republican supermajority in the North Carolina legislature to defend the law in court, as well as the earmarking of half a million dollars in North Carolina’s emergency fund for the future costs of defending the bill, make...