The Kids are Alright: The “Bathroom Bill” Regulating Restroom Use in Schools Isn’t

November 22, 2015 by Sue Breckenridge

On November 2, 2015, the US Department of Education ruled that Palatine High School District 211 has been discriminating against a female student on the basis of her sex. The Department determined that the school district is in violation of Title IX and is in violation of federal law for denying a student access to a gender-appropriate locker room simply because the student is transgender.

Last week, the Wisconsin legislature introduced AB469, what has been referred to as the “Bathroom Bill” in order to prevent transgender students from access to the gender-appropriate bathrooms and locker rooms. Opponents of the bill say it would once again put Wisconsin in conflict with federal rules that say students cannot be treated differently because of gender, as well as remove local control around the issue. A number of schools and school districts around the state make accommodations for transgender students that by all accounts are working fairly well, and this legislation would eliminate those policies.

WCMC reporter Sue Breckenridge was present during the hearings. What follows are her impressions of the eight hours of testimony in which a flurry of students, parents, school district representatives, transgender activists, and medical and psychological professionals came to share their experiences and expertise. Many more would have spoken had the hearing not been ended before they had the opportunity.

There are a lot of really remarkable, articulate, funny, smart, caring young people in Wisconsin. It was a privilege to hear their stories. I loved every single one of the kids who got up and spoke, telling the committee members, “I matter.” Absolutely they do. And some of them have wonderfully supportive parents, cisgender friends, and school officials working to help them through the world.

But the pain. The pain that the legislation would cause is very real. Transgender kids already have it hard enough, and this would just make it worse. The kids who spoke today are by definition kids who are fairly comfortable with themselves and with being public about who they are. This bill would be brutal to kids who aren’t in that position.

Doctors, counselors, and adult and teenage trans activists spoke about the difficulty trans kids have in school. Trans girls forced to use the boys bathroom are frequently harassed, bullied, and beaten up. Single-occupancy facilities are usually in remote locations – such as in the nurse’s office, near the faculty lounge, or in an administrative wing – which means the student risks being late to class if they try to use the bathroom between classes, and it also singles them out and stigmatizes them as other. Because of these difficulties, many trans students try to get through the day without going to the bathroom at all, which can lead to urinary tract infections and bowel obstructions. Allowing students to use the bathroom of the gender they identify with, or providing a multiple stall unisex bathroom, has proven to be helpful for many teens and not caused many conflicts with the rest of the school population. Most kids use the stalls, and the vast majority of kids just want to do their business, wash their hands, and get on with their day.

Skylar Lee Photo: Callen Harty

Speaking of pain, Joanne Lee, whose son Skylar committed suicide two months ago, gave incredibly powerful testimony against the bill. She spoke about losing her child and her great regret that she didn’t work hard enough to understand what he was going through (for more on Skylar’s story and Joanne’s mission, see “Mother Vows to Fight for Equality after Transgender Son Commits Suicide“). She talked about how difficult it was for her son to navigate through the school world safely and functionally, and how much more difficult this legislation would have made it for him. She told the committee members in no uncertain terms that if enacted, this legislation would lead to more suicides, and the blood would be on their hands. I heard quiet sobs throughout the room during her testimony; Reps Sondy Pope (D-Cross Plains) and Chris Sinicki (D-Milwaukee) both needed time to compose themselves before they could ask questions. As Pope noted, this story demonstrates why trans kids should have preference over cis kids. She said that if legislators don’t keep Skylar’s story in mind if this bill moves on, it’s immoral.

Pope and Sinicki were both wonderful throughout. They were informed, kind, and righteous. Sinicki pegged the bill early on as a solution in search of a problem. They and the other Democrats wanted to hear everyone, but because Speaker Robin Vos (R- Rochester) perhaps realized it would look bad for his party if all of their representatives left while the Democrats continued to hear the people, he ordered that building would be closed to the public once the chair gaveled out, and the public had to leave the building. Even still, Democrats met with members of the public afterward in their offices, hearing their stories.

Except for the bill’s authors, it really didn’t seem as though most of the Republicans’ hearts were in it, though Rep Romaine Quinn (R-Rice Lake) asked many speakers about showers, particularly the students, to the point where it got pretty creepy. The Republicans may realize that there’s no good reason for this bill – the authors’ arguments that this will keep the state from being subject to federal lawsuits were picked apart pretty thoroughly by school officials and other experts – so unless their leadership is really behind this bill, it may not go much further than this.

They also seemed to realize that they would look really bad if they treated the kids who spoke the way they usually treat people who speak in opposition, so they generally weren’t outright assholes. Their assholery came out in subtler ways, though, such as when they showed that they cared so little about the subject that they couldn’t get basic terminology right, or when they refused to use a speaker’s preferred gender pronoun. Their unconcern for the truly vulnerable also showed in the concern they expressed over and over again for the rights of the poor, poor cis kids and how the majority shouldn’t have to cater to the minority.

Rep. Jesse Kremer

Rep. Jesse Kremer (R-Kewaskum) was the lead author, and he revealed that in drafting the bill he consulted with two right-wing homophobic groups (Wisconsin Family Action and Alliance Defending Freedom – thanks to Rep Mandela Barnes [D-Milwaukee] for checking out the latter group and reporting that they’ve pushed for anti-homosexuality laws in other countries) and looked at draft legislation from other states that never made it into law. He talked to the Wisconsin Association of School Boards, but according to testimony from that organization’s representative, his group made it very clear to the bill’s authors that they believed the bill would be a disaster for schools, even in the amended form, because it would leave districts open to federal lawsuits (since a state law doesn’t override federal law) if they comply with the law, and to state lawsuits if they did not. Kremer admitted that he didn’t look at states that have passed legislation that goes in the opposite direction. Worst of all, he didn’t talk to any LGBT groups, and he justified that by asserting that the bill applies to everyone, so he didn’t think it necessary. Rep Dianne Hesselbein (D-Middleton) arranged a meeting between him and students in her district, and the main impression they seem to have made on him was that they were concerned about kids being exposed through open records requests. He claims that he’ll meet with anyone, and perhaps if the bill is revised he’ll have a token meeting with someone from the affected community.

The details of how this would play out in the real world are disturbing. Children will be the enforcement mechanism: they’ll be reporting on one another. Schools would be expected to check birth certificates. The authors of the bill think that when babies are born chromosomal or genetic testing is done. A parent or grandparent volunteering at a school wouldn’t be allowed to accompany an opposite sex child or grandchild to the bathroom. Kids who aren’t out to their parents won’t be able to ask for the meager accommodations the bill provides. Schools will be facing a nightmare to accommodate kids, and there is no mechanism in the bill to provide them with the funding to handle it. The possibility of closeted kids being exposed through open records requests is real, and I wouldn’t be surprised if the GOP uses that in their next push to gut the open records laws.

Just as a side note, a lot of the Republicans seem to have no clue what kids do in locker rooms. It’s been a while, but when I had to change in gym class I don’t remember ever looking at anyone else – I was too self-conscious and trying my best to hide my own body to care about what anyone else looked like. Student testimony often expressed that general point as well. This fantasy that Republicans seem to have of kids just walking around naked in the locker room is absurd. They’ve been watching too many Hollywood movies and too much porn.

All in all, though, even though the bill would have horrible consequences, I couldn’t help but find the kids who testified to be an inspiration. They have a lot to teach us about compassion, understanding, acceptance, and pride. Hearing their stories made the day much more affirming than I could have imagined.