Round-up: Gender and locker room/bathroom policies

• Counsel for a Virginia high school student seeking an injunction against and rescinding of the Gloucester County school board's bathroom policy that requires transgender students to use separate, private bathrooms has asked the appellate court to reconsider the dismissal of the Title IX claim in the case. As we wrote about over the summer, the judge in this case made comments from the bench that gave the impression that he had already made up his mind in this case as well as providing a lengthy non-sequitur, and not allowing experts from the justice department to testify. The ACLU lawyers representing student Gavin Grimm, a high school junior, want Judge Doumar to consider Title IX when ruling about the school board's policy. An equal protection claim stills exists, but Doumar's rants about transgender as a mental disorder make me wonder how long that one will persist and/or what kind of fair hearing can result. Apparently Grimm's lawyers are concerned as well. It appears that, in addition to the Title IX appeal, Grimm's lawyers are asking for a new judge to be appointed to the case. They cite his suspicions around modern science and gender identity and his repeated use of the term mental disorder in describing people who are transgender.  
• Erin recently wrote about OCR's order that an Illinois School District allow a transgender student use all the facilities (restrooms, locker rooms) in accordance with her gender of identity. This piece offers more of the back story of that situation, with more information coming from the girl's mother and her daughter's experiences. 
• Another personal story of a transgender child's school experience has become a book. Nicole Maines who, with her family and a team of GLAD lawyers and advocates, successfully challenged restrictions on her bathroom use, is the subject of a book by journalist Amy Ellis Nutt. Parents, Wayne and Kelly Maines, and Nutt were on Fresh Air last month talking about their family and the book. 
• Nebraska, one of the 14 states with no policy regarding the participation of transgender children in interscholastic sports (according to Trans* Athlete), is raising the issue. The Nebraska School Activities Association continues to work towards a policy and it has many voices whispering in its ears--including parochial schools which want participation to be based on gender listed on a birth certificate. As in other states where this issue is being discussed by state activities boards, conservative Christian groups have been quite vocal in their opposition to transgender students using restroom and locker room facilities in accordance with their gender of identity. The Nebraska Catholic Conference and Nebraska Family Alliance say the gender by birth certificate is the best policy for all students and believe that more liberal policies are the result of fear of litigation. Those making decisions are right to be afraid of litigation should they institute such a policy. Cases across the country--never mind the federal government's weighing in on the issue--affirm that students should be allowed to use single-sex facilities in accordance with their gender of identity. While this seems to be about sports, it is really about locker rooms. The groups in opposition are far more concerned with where children are changing clothes and peeing and less about where they are playing soccer. This has been evident in cases in Minnesota and Montana where "family values" groups have taken out ads and used various scare tactics invoking molestation and sexual assault to prevent transgender children from using bathrooms and locker rooms based on gender identity. 
• Some of the same Catholic groups are none too happy with new Health and Human Service proposal that would prohibit discrimination in the delivery of health care services to transgender patients. This is basically, from what I read, a Title IX-esque approach to sex discrimination that explicitly protects against discrimination faced by transgender individuals. But, as noted above, these groups are not happy with the government's interpretation of sex discrimination to include gender, an interpretation of Title IX that has allowed transgender children to enter bathrooms, for example, based on their gender of identity. They see the Obama administration's support of Title IX's application to transgender people as dangerously contagious now that HHS has adopted a similar interpretation.
• In New York state, a parent concerned that a transgender boy has been using the boys' locker room called the Alliance Defending Freedom, the Christian advocacy group that is raising concerns about the HHS policy. The group sent a letter to the school in Leroy, New York stating that it is misinterpreting Title IX because  " Title IX specifically authorizes schools to maintain separate facilities." Not exactly. The student in question is not named, but apparently is doing fine--as are most other students. Apparently there is a welcoming attitude in Genesee County.

Transgender student denied bathroom access in Virginia

It has been a week of adults fighting over and making decisions about where children can go to the bathroom and change their clothes.

First it was the Minnesota State High School League (which we wrote about here and here; check out UIowa PhD candidate Cathryn Lucas-Carr's post about the policy and some historical context here). And a couple of days ago the debate emerged, minus an explicit athletics component, in Virginia where a high school student has come out as a transgender male. Gavin Grimm was given permission--by the principal--to use the boys' bathroom and has been doing so all fall seemingly without incident.

A school board proposal drafted by one board member, Carla Hook, last month and approved this week now states that students whose birth sex matches their gender identity will be allowed to use communal restrooms. Transgender students will be provided private accommodations. In other words, bathroom usage will be dependent on the sex you were assigned at birth regardless of gender identity. Anyone who identifies differently will use entirely separate facilities.The same is true of locker room facilities.

It seems like the Gloucester County Public School Board was trying to be understanding given that the statements within the proposal did not outright (they believe) discriminate against transgender students and supported those with "sincere gender identity issues."

Here is what I read both in this policy and the one in Minnesota last week. Organizations/associations/school boards know they can't outright disparage these students by saying they are not "real" boys or girls. I guess we should be thankful for the current moment of greater cultural awareness in which some people are realizing that gender identity is a civil rights issue. What the policies are, though, are attempts to avoid legal issues. But it is clear that these decision makers know very little about the issues. The lack of understanding about gender identity (I mean we haven't even gotten into the "complicated" stuff like non-binary and genderqueer) has resulted in poorly worded policies that do little to ease the problems transgender students face. Grimm himself commented that the separate facilities option will likely cause him greater anxiety and depression--issues he has faced in the past.

The issues of student privacy being invoked in the discourse surrounding these policies is not about the privacy of transgender student, it is about the privacy of cisgender students. I question this idea that cisgender students' need more or would be denied more privacy rights that their transgender peers.

On a slightly more hopeful note: I suspect that the GCPS policy will not hold up under legal scrutiny. A similar action in Maine did not and the state was recently forced to pay out a settlement to a student and her family. I would like to see some challenges mounted to the Minnesota policy as well.

Agreements reached...

...in Portland, Maine where an investigation by OCR found that girls received fewer opportunities for participation in interscholastic sports than their male peers. The investigation also revealed some disparities in facilities. Under the agreement, the district will add girls' volleyball for the 2014-15 season and ensure equitable locker rooms, practice and competitive facilities. Administrators will also begin a process of assessing whether the district meets either prong one (proportionality) or prong three (interest) in determining the sport opportunities girls in Portland's schools receive.

...in the Union County (South Carolina) School District. Interestingly chairperson of the school board BJ McMorris announced at a meeting last week that OCR found no merit to a complaint filed in December 2012. Curious announcement given that a voluntary resolution agreement would not seem necessary for a complaint with no merit. Sure, some things will be improved, the public was told at last week's meeting, but nothing was ever really wrong was the message (along with a little passing of the buck--see below).
One of the issues with the resolution agreement process is the "no fault" aspect. Whatever semantic dance administrators--at all levels--are doing, an agreement means something was wrong that needs to be fixed.
What happened in South Carolina was that one part of the complaint in which the complainant argued that there were gender-based differences in punishments meted out to student-athletes was found to have no merit. Other aspects of the complaint and the OCR investigation did not, however, find Union County to be in tip-top Title IX shape.
Superintendent Kristi Woodall said she felt bad for the taxpayers who have to foot the bill for the work the district had to do compiling documents and otherwise accomodating OCR during the investigation. It was a throw-OCR-under-the-bus move. There have been plenty of times that OCR does not invesitgate a complaint because it does not seem to have merit.
Woodall is blaming OCR for doing its job and not taking any responsibility for its own non-compliance.
But OCR fired back seemingly immediately after the above-linked article was published in the local newspaper. A letter to the paper (which also bears some responsibility for not questioning a resolution to an proclaimed non-situation) included this statement:
“...OCR’s investigation determined that the district failed to provide female athletes equal opportunities with respect to: equitable facilities, including practice and competitive softball fields; strength training facilities and locker rooms; laundering of uniforms; pregame meals; scheduling and number of games; and maintenance of uniforms.
On Sept. 24, 2013, the district signed a Resolution Agreement to address these Title IX compliance concerns. OCR expects to issue a letter of findings, with accompanying Resolution Agreement, by the end of this week.”

...in Gloversville, New York after a January 2011 complaint triggered an OCR investigation. This is another case of spinning the situation with the superintendent of the Gloversville Enlarged School District saying that OCR found nothing wrong but that the district would be making some improvements. A project in which many of the district's fields and facilities were renovated dealt with some of the issues raised in the complaint, but the district will still be required to: schedule some girls' softball games on the lighted fields, fix the drainage on the softball fields, and make sure that a shared field is properly prepared for each respective sport that uses it.

Merged booster clubs in Maine

The Portland (ME) school board has proposed that all athletic booster clubs be merged. So now, at the city's two public high schools, there will no longer be booster clubs for individual sports. Each school will have one booster organization and an administrator who supervises the organization, according to the proposal.
The proposed change is due to some questionable accounting practices within booster clubs as well as Title IX concerns over the equitable distribution of funds and treatment of athletes.
Apparently there is already some sharing of booster funds among teams, so the concept is not completely foreign.
But based on the article's public comments section, there is much criticism of this plan. People are basing these critiques on the belief that fundraised monies should not affect Title IX compliance and that the amount of money raised is a direct correlation to the amount of effort put in by parents.
While the latter may be partially true (the former is not, by the way), these arguments fail to consider the different values parents, students, administrators and the general public have regarding different sports. Football boosters raise more money, in part, because high school football in many, many cities and towns is the highest profile sport. If both the football team boosters and the girls soccer team boosters sell concessions at their respective games, who is going to raise more money?
Such an argument just perpetuates the inequities and punishes those student-athletes, and their parents, who may feel just as passionately about their sports as football players and their parents but cannot get others to feel similarly.

Maine parent sues school district over teacher's sexual assault of her son

A lawsuit filed last week in the federal district court in Portland, Maine, alleges that the school district violated Title IX by not protecting the plaintiff's son from sexual assault by a female teaching assistant at the alternative high school he attended. The teaching assistant, Amy Shriver, has been arrested, convicted and sentenced on charges of sexual abuse of a minor. The victim's mother's civil suit alleges, among other things, that even though she reported what was going on to Shriver's supervisors and to a member of the school board, the district did nothing to stop the abuse, which continued for seven to eight month period.