By David M. Greenwald
Oakland, CA – California Attorney General Rob Bonta this week joined a multi-state amicus brief in the Seventh Circuit Court of Appeals in support of the rights of transgender students in Doe v. Mukwonago Area School District.
The case originated in Wisconsin and stems from a lawsuit challenging a Wisconsin school board’s policy barring an 11-year-old transgender student from using the girls’ restroom based on her sex assigned at birth.
The AG’s office called the school policy “part of a dangerous wave of discriminatory policies that target transgender children.”
In the brief, the coalition explains that it believes the policy violates Title IX and the Equal Protection Clause, and describes serious harms that could result from “unlawful discrimination on the basis of an individual’s gender identity.”
“No student should ever have to resort to the courts to prove they are entitled to respect,” he explained. “As we continue to witness grown adults targeting the rights of vulnerable students and trying to undermine their rights and dignity, today’s coalition stands in support of our LGBTQ+ student community across the country.”
In the brief, the signers noted that “Amici States strongly support the right of transgender people to live with dignity, be free from discrimination, and have equal access to education, government-sponsored opportunities, and other incidents of life, including equal access to school restrooms.”
The signers believe, “Discrimination on the basis of one’s transgender status causes tangible economic, educational, emotional, and health harms.”
The amicus notes, “Over 1.6 million people in the United States, including approximately 300,000 youth between the ages of 13 and 17, identify as transgender.”
It continues, “Transgender youth experience levels of discrimination, violence, and harassment that far exceed those experienced by their cisgender counterparts.
“The experiences of amici States and other jurisdictions show that policies and practices that ensure equal access to public facilities for transgender people—including access to common restrooms consistent with their gender identity—promote safe and inclusive school environments that benefit all,” the amicus continues.
One survey cited by the brief notes that, of LGBTQ students, 62.6 percent reported being “teased, bullied, or treated badly” at school in the prior year, and more than half (55.6%) of such youth reported being victimized specifically due to their sexual identity, gender identity, or gender expression.
“Discrimination against transgender youth—including denial of access to appropriate restroom facilities—can have serious health consequences,” they argue.
On the other hand, “Policies that prevent transgender students from using sex-segregated facilities consistent with their gender identity are unnecessary and unlawful.”
The amicus makes a threefold argument against the Mukwonago Area School District’s Policy.
First, they argue, “The School District’s policy violates Title IX of the Education Amendments of 1972 by denying transgender boys and girls access to the same common restrooms that other boys and girls may use.”
Second, they argue that the policy fails to “advance any legitimate interest, such as protecting public safety or personal privacy” and thus “its only function is to stigmatize a particular group, which violates equal protection.”
Third, they argue that inclusive laws and policies can produce important benefits and do not require significant expenditures.
“The experiences of school administrators in dozens of States across the country confirm that such policies can be implemented fairly, simply, and effectively,” they argue.
They cite policies from the District of Columbia which require businesses to “provide access to and the safe use of facilities that are segregated by gender” where nudity in the presence of others is customary, while also making accommodations for transgender individuals to use the facility “that is consistent with that individual’s gender identity or expression.”
They argue that “it is discriminatory restroom policies rather than inclusive ones that raise privacy concerns.”
Moreover, they add, “Such policies are more likely to create a needless risk of violence against transgender people, whose physical appearance may diverge from their sex assigned at birth and who therefore are likely to be perceived as using the ‘wrong’ restroom.”
In short, they argue that “policies like the one at issue here, which bar transgender individuals from using a restroom that aligns with their gender identity, are more likely to pose safety and privacy concerns than inclusive policies.”
California, the brief notes, “adopted protections against gender-identity discrimination in schools to address harms suffered by transgender students, including students not drinking and eating during the school day to avoid restroom use.”
The California Attorney General noted, “In contrast to the Mukwonago Area School District’s policy, all California schools have been required since 2014 to permit students to use sex-segregated facilities consistent with the student’s gender identity.”
The AG added, “At the California Department of Justice, we remain committed to ensuring a safe and inclusive learning environment that benefits all.”