Lawfare's Quinta Jurecic on what's next for the January 6th Committee and the steps Congress can take to safeguard American democracy.
President Obama told public schools they must permit transgender students to use the bathroom of their choice. Advocates for transgender students view the president’s directive as a civil rights victory. Many school principals say they’re pleased to have guidance on an issue they’ve grappled with for years, particularly at large urban high schools. But opponents sharply criticized the move. They see it as executive overreach and an infringement on the privacy rights of non-transgender students. Schools that refuse to comply face the possible loss of federal funds. Diane and her guest discuss the controversy over transgender rights at the nation’s public schools.
- Sarah Warbelow Legal director, Human Rights Campaign
- Matt Sharp Legal counsel, Alliance Defending Freedom
- Julie Hirschfeld Davis White House reporter, The New York Times
- Schuyler Bailar Member of the Harvard swimming team and the first Division I NCAA transgender athlete to compete on any men's team
How To Support Trans Teens
Schuyler Bailar is the first transgender athlete to compete on any Division I NCAA team. In our conversation about gender and public school bathroom access, he and the Human Rights Campaign’s Sarah Warbelow talked about mental health and transgender teens.
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The Obama administration's directive on bathroom choice at the nation's public schools has pushed the debate over transgender rights front and center. Many conservatives view it as overreaching and infringing on privacy rights. Supporters of the directive see it as a civil rights victory. The stakes are high. Schools not in compliance could face legal action and loss of federal aid.
MS. DIANE REHMHere in the studio to talk about it all, Sarah Warbelow of the Human Rights Campaign, Julie Hirschfeld Davis of the New York Times and Schuyler Bailar, a transgender undergrad at Harvard University. From a studio at Georgia Public Broadcasting in Atlanta, Matt Sharp of the Alliance Defending Freedom. I'm sure many of you will want to comment.
MS. DIANE REHMGive us a call, 800-433-8850. Send an email to email@example.com. Follow us on Facebook or Twitter. And thank you all for joining us.
MS. JULIE HIRSCHFELD DAVISThanks, Diane.
MR. SCHUYLER BAILARThanks, Diane.
MR. MATT SHARPThank you.
MS. SARAH WARBELOWThanks for having us.
REHMGood to have you all. I wonder, Sarah Warbelow, first, we ought to define terms. Give us a sense of what transgender means and how sexual orientation is different from gender identity.
WARBELOWAbsolutely. So transgender is a descriptive term that refers and individual who has been assigned either male or female at birth, but no longer identifies with the sex they were assigned at birth. So a transgender or a trans man is someone who was assigned female at birth and identifies as a male. In a transgender or trans woman, is someone who was assigned male at birth and now identifies as female. Sexual orientation...
REHMExcuse me. Before you go on, when you say assigned, you mean was born with the genitalia of a woman in the case of a trans man or a man in the case of a trans woman.
WARBELOWIn most cases, that's true, but sometimes children are born with ambiguous genitalia and doctors make a guess as to what their sex they'll likely identify with as an adult. And they don't always get that right.
REHMI see. And talk about sexual orientation and how that differs when we talk about gender identity.
WARBELOWSo sexual orientation refers to whom you're attracted to in a romantic sense. So if you are someone who is a woman who is attracted to another woman, you're lesbian. You're straight if you're someone who is male and attracted to someone who is female or vice versa. Gender identity, on the other hand, is your internal sense of sense. Are you male? Are you female? How do you fall along a gender spectrum?
WARBELOWHow do you understand yourself to be. And so everyone has a sexual orientation. Everyone has a gender identity. And the two are not necessarily related.
REHMAnd to you, Schuyler Bailar, you were, I gather, at birth, identified as a girl and went to Harvard University as young woman and then transgendered to male and you now compete on the men's team. Is that correct?
BAILARIt's mostly correct.
BAILARI was assigned female at birth, like Sarah was saying, and I've always identified as male. So nothing really changed in terms of how I identified, but before I actually college. I was recruited as a woman, as a female athlete, to swim at Harvard University and then, before I actually joined Harvard's team, I transitioned. And the term, it's typically transitioned, not transgendered because that implies something happened to me to make me the way I am.
BAILARBut I've always been transgender. I've always been who I am. The term is transitioned because I changed the way I presented myself, if that makes sense.
REHMI understand. And what about your parents? How did they see you? How did they treat you and how did you grow as a young woman transitioning to male?
BAILARI've always been very boyish so even as a young "girl," I dressed myself as a boy. I only bought clothes. I only played with boys. I played football at recess. I did all the very typically boy things as a kid. And my parents were very lenient with me. They didn't really care, like, how I presented myself. They let me do whatever it is I wanted.
BAILARThey let me shop for the clothes that I wanted. And actually, at the point when I started presenting more femininely, like, growing my hair out, wearing dresses and stuff, I think it actually confused them a bit 'cause it wasn't who I was. But when I actually came out and said, I'm transgender and I want to transition, they were very supportive and they -- I think it took them a while to kind of get what I was saying, but once they kind of put all the facts together and remembered my history, it didn't surprise them that much.
REHMAnd to you, Julie Hirschfeld Davis, tell us about the letter that President Obama sent to public school districts across the country on Friday. Just what does it say?
DAVISWell, this is a dear colleague letter, which is actually a fairly routine thing that the Department of Education will send around the country to schools to give them guidance on how the current Department of Education are interpreting federal law. And in this case, they were joined by the Justice Department on the letter. And for a couple of years now, the Department of Education has made it clear that it considers gender identity as part of a protected class under Title IX, which is the federal nondiscrimination law that applies to schools.
DAVISSo they'd kind of been going in this direction. They had said before, both in guidance and in their taking position in court cases, that they consider gender identity something that was a protected class for the purposes of nondiscrimination. What they hadn't yet down was said, okay, well, if that's the case, what does that practically mean for schools? And that's what this letter does, is it says we consider the law to say the following things about -- and it covers a variety of different subjects.
DAVISBut there is a section that's attracted, obviously, the most attention is on restrooms and locker rooms. And it basically says that schools must allow transgender children to use the facilities that correspond to their gender identity without asking for a medical diagnosis, without asking for a birth certificate, basically without regard to the gender that they were assigned at birth. And it also says that schools are allowed to provide extra privacy for students who seek it for any reason.
DAVISAnd some schools around the country that have confronted this issue have done that in various ways, but it doesn't require that. All it requires is that every student that attends a public school be allowed to use a bathroom or locker room of their choice that corresponds to their identity.
REHMAll right. And to you, Matt Sharp. You are a legal counsel of the Alliance Defending Freedom. That is a Christian legal organization that, I gather, opposes transgender rights. Your organization is also viewed by some as an extremist group. Tell us how and why your organization opposes allowing transgender students to use the facilities of their choice.
SHARPWell, thank you and a couple of clarifications is that we are not in favor of anybody being bullied, including transgender students, that every student deserves to be protected from bullying and harassment at school and to be treated with dignity and respect. And we also find that this is a belief that is shared across religious beliefs, across political beliefs as this idea of a right to privacy. And so, for example, we are involved in a law suit in Chicago dealing with a student up there that was born a male desiring to access the female restrooms and the Obama administration came in and told a school district that it must allow that male student to use the female locker room.
SHARPAnd so we were joined in a lawsuit by over 130 parents and students, including many that are of no religious faith whatsoever, but have concerns about privacy. And so that's with this letter from the Obama administration is that it does implicate the Constitutional right to privacy. It's one that when Title IX was drafted 40 years ago, they specifically authorized schools to have separate restrooms, locker rooms and dormitories on the basis of biological sex because they realize there are privacy concerns implicated in that when it comes to boys and girls and their biological and anatomical differences.
SHARPAnd that when you're in these private spaces, we want to make sure that students' privacy is respected and so our position in all of this is there are ways to accommodate everybody so that every student has a private, safe place where they can change and use the restroom and whatnot, but without compromising and violating the right to privacy of the majority of students who want to continue to change and shower with members of the same biological sex.
REHMSarah Warbelow, how do you respond to that concern about privacy and self protection?
WARBELOWSo, look, privacy is a huge concern for everyone and many schools have taken additional steps to provide any child who wants additional privacy and that's exactly what the Obama administration has encouraged. So for any child who, for whatever reason, seeks an extra degree of privacy, they're entitled to have that. But what Matt has done here is misidentified the child that he's talking about in the lawsuit. This isn't a boy who is seeking access to a girls room. This is a transgender girl who is seeking to be treated just like all other girls in the school.
REHMSarah Warbelow, legal director of the Human Rights Campaign. We'll take a short break here. The lines are open if you'd like to join us. 800-433-8850. Stay with us.
REHMAnd welcome back. We're talking about the president's directive issued last Friday on specifically how young people are to be allowed access to locker rooms, bathrooms of their choice, speaking particularly to transgendered young people. I know that Schuyler, you had some concerns about what Matt said regarding bullying.
BAILARRight. Matt said, to quote him, he said a male student who wants to use the female locker rooms because the male student, quote-unquote, identifies as trans, and then he was also talking about how he wants to preserve the dignity of every student and how no student should be bullied. But like Sarah was saying, that is misidentifying the student who identifies as female. And so the student is not male, the student is female and should be allowed to use the locker rooms of her choice.
BAILARAnd also I just think that it is bullying to then call out this one student and make them feel uncomfortable to not use the locker rooms that they want to use. So...
REHMHere's an email from Richard, which I think gets to the point that many parents and educators may be concerned about. The email from Richard states my question concerns locker rooms and especially showers. If a transitioning male-to-female teen still has male genitals, is he allowed to shower with the girls, Sarah?
WARBELOWSo, you know, transgender people may or may not have surgery. It's not right for every person. What we do instead is look at how a student identifies and how do they comport themselves on a regular basis. So a female student, regardless of her genitalia, under Title IX is allowed to access a restroom and locker room consistent with their gender identity. Most students are going to ask for increased and additional privacy. I don't -- I mean, most of us who are girls remember what it's like to be a 16-year-old girl.
BAILARYou know, nobody's walking around strutting their stuff. I mean, people are hiding behind towels, using bathrooms and other things. And the truth is that school is not what it used to be. Most kids aren't even changing. They're putting on -- from jeans to shorts. They're not stripping naked.
REHMMatt, do you want to comment?
SHARPSure, and I would disagree with that, and we have to look no further than the lawsuit we filed up in Chicago, where we have detailed stories of these female students describing their discomfort and how it violates their right to privacy to be forced to shower and change and et cetera. And so we have one girl in particular that was describing, because of the embarrassment that comes from being forced to share a locker room with a biological boy that she now wears her gym clothes underneath her street clothes. She goes into PE, takes off her street clothes, leaves her gym clothes on. They get sweaty and soiled, as you can imagine, playing gym, and rather than changing out of those, she just puts her other clothes back on top because of the fear and embarrassment she's feeling.
SHARPAnd that's what we're saying here is that in Palatine, we've got 63 students that have joined this lawsuits, 63 students that are saying we just want to preserve the traditional privacy protections that were available in our schools and in our locker rooms and our restrooms. We're not wanting this transgender student to be bullied. We want him to have access to the male restrooms if he wants those or to any other accommodations, single-stall changing areas, whatnot, so that his rights and dignity and privacy can be respected, but we want ours respected, as well.
SHARPAnd there's a much larger -- as a practical concern a much larger group of these students that are wanting to continue to have these sex-specific restrooms and locker rooms and changing areas.
REHMMatt, do you want to comment?
BAILARI just want to step in there. You are still violating the dignity of the student by referring to the student with male pronouns. The student identifies as female. You refer to them with female pronouns.
REHMAll right, Julie, I wonder in your reporting, have you talked with students who have perhaps joined the Chicago lawsuit, who have expressed concerns regarding embarrassment or right to privacy violation? What have you found?
DAVISI have not talked with those students. When I spoke with some school administrators and principals who have confronted this issue, particularly one in Louisville, Kentucky, who, you know, a lot of these things we're talking in theoretical terms but these are very practical matters for educators and students across the country. They're having to figure out what to do each and every day, and that was part of the impetus, I think, for the administration putting out these guidelines is that they were getting questions from people.
DAVISYou know, we want to do right by our students, we want to do right by all our families, but we just don't know what to do. And the principal I spoke to in Louisville, who has implemented a policy that's basically along these lines, allowing transgendered children to have access to the restroom or locker room of their -- that corresponds to their gender identity, said that there have been no issues, that basically the students regard it as kind of a non-issue.
DAVISNow of course that's not going to be the case everywhere, but they have figured out what works for their school and their students, which is that they have male and female restrooms, male and female locker rooms, and then anyone at any time can say you know what, I want privacy, and they can go and use a single-stall bathroom at the front office. And it's a school of more than 1,000 kids. Apparently it's working fine for them.
DAVISAgain, it's going to be a very individual thing from student to student and district to district. But there are a lot of alternatives that principals and school boards now know from the federal government they are allowed to provide. So that was part of the point of the guidance was to say you're not going to be running afoul of any laws, you're not going to be running afoul of any standards that the Department of Education and the Department of Justice are looking at if you say this is the overarching policy, and if -- and if you want to provide additional privacy and separate things further to make your students comfortable, whether it's the transgendered student or the non-trans student, that you're within your rights to do that.
DAVISIt is interesting, though, if you look at both the guidance and the statements that the administration put out on Friday when they released them, there are a lot of references to the right of privacy. It's the right of privacy of the transgendered student that they really are sort of weighing in on the side of. Matt mentioned that there are lots and lots and lots of students who don't have this issue and who want to keep things the way they are. Clearly the administration decided that it is the rights of the very small minority, at least right now, of their students who they want to make sure have their privacy rights protected.
REHMSchuyler, tell me about your own experiences with privacy rights.
BAILARRight, so I go into the men's locker room at school, at home, everywhere I got I'm in the men's locker room and the men's bathroom. And I don't have any privacy rights. Nobody really cares that I'm in there. I think some people have looked at the scars I have on my chest, and some people ask me questions about them, but for the most part I have not run into any issues. My team is completely supportive of me, and I don't think anybody's uncomfortable in the locker room, and they have not voiced anything to me, so...
REHMNow last week we had North Carolina Governor Pat McCrory on the program, and North Carolina, as you know, Sarah, has banned transgendered people from using public bathrooms that do not match their biological sex. The governor said it should be up to the courts or Congress to decide the issue. What have the courts said so far?
WARBELOWSo the courts have -- many of them already found that protections based on sex include protections for transgender people. The Sixth Circuit, as far back as 2004, ruled that a transgender worker had protections under employment nondiscrimination laws that prohibit discrimination on the basis of sex. And the Fourth Circuit, which is a circuit that North Carolina sits in, has determined that the current administration policies regarding allowing trans students to use restrooms consistent with their gender identity is appropriate and ordered Virginia to allow a trans boy to access the boy's restroom in schools.
REHMWe've got a number of callers. I want to open the phones. Here is Sharon in Ann Arbor, Michigan. You're on the air.
SHARONThank you. I'm -- it's very interesting, a very interesting situation and an interesting policy, but I'm wondering why it's happening now. You'd think that nothing more could go on to complicate this presidential campaigning season. Why now are we hearing about this, particularly after the incident with the rapprochement with Iran, which was kind of manipulated. You wonder who's minding the store.
REHMAnybody have a thought, Sarah?
WARBELOWSure. So again, this isn't new. This is something that has been happening for quite some time. There was a settlement in California with a school district that was discriminating against a trans boy in 2013. What's forced it into sort of the popular media is that Governor McCrory in North Carolina decided to enact a law that discriminates against transgender people, subjecting transgender people to risks of violence.
WARBELOWIf you are a trans woman, and you need to enter into a men's room, you're the one who's at risk of experiencing violence and discrimination. And so this is a really significant problem that was created by the state of North Carolina. Other states have actually chosen proactively to go another way. Republican governor of South Dakota vetoed a bill that would have forced transgender students to not use restrooms consistent with their gender identity.
REHMSo what will you do, Matt, going forward in regard to the president's directive?
SHARPI think we're going to see lots of lawsuits challenging this, number one because this is an extreme overreach and abuse of executive authority. Title IX has been on the books for over 40 years now. It's always been understood to protect against sex discrimination, biological sex discrimination, and in fact out of six court cases that have looked at this, five of them, including one from the Ninth Circuit, have rejected this idea that Title IX includes gender identity.
SHARPAnd so what you've got here is the Obama administration thwarting Congress, ignoring their will, ignoring the clear precedent and going in and forcing this on every school. And I think it was Julie that mentioned that a lot of schools were approaching this with different ways and different solutions, and what the Obama administration done -- has done is strip all of that away and tell schools you don't get to come up with your own solution, we are dictating it now from Washington.
SHARPAnd so I think you're going to see lawsuits challenging this overreach by the executive branch once again, and I think you're also going to see lawsuits involving this right of privacy, a student saying this violates our right to privacy to impose this on our school, to strip away our rights when we're using the showers and locker rooms and whatnot, that there are better solutions that are available that protect every student's privacy.
REHMSo Julie, I gather this directive does not have the power of law, but in fact the president has threatened some schools with the cutoff of funds. So how do you think this is going to be accepted around the country?
DAVISWell, I think it's going to be very interesting to see, and I don't think it's going to be a one consistent reaction. I mean, it does not have the force of law. All of these dear colleague letters that are issued by the Education Department are basically sort of notices of, okay, we all know what the law says, and here's how we interpret it in terms of practice and what you should be doing in your own schools.
DAVISI would disagree a little bit with Matt. It doesn't tell schools what they must do. It tells schools what the rights of their students are under federal law and how they -- how this administration interprets that when it comes to making accommodations now. It says you may provide additional privacy. It doesn't say you have to provide additional privacy.
REHMAll right, and you're listening to "The Diane Rehm Show." And we have a caller in Herndon, Virginia. Hi there, Liz, you're on the air.
LIZHi, Diane, thank you so much for taking my call, I love your show.
LIZSo I'm curious, my youngest brother is 12 years old, and he's about to go into seventh grade. So this is something that's going to be affecting him as he goes through high school. But your panelists have mentioned that there are a lot of stressors that go on with being a teenager in schools in the United States today, and, you know, we put a lot of -- a lot of thought into mental illnesses, things like depression and the anxiety and even, you know, eating disorders and things like that.
LIZAnd what I've heard people say, and I don't know that I believe this myself, is that it's -- they believe that maybe transgender is a type of body dysmorphic disorder. So I'm wondering if there's any sort of pushback on that front or if anyone's really looked into that at all or if your panelists have any thoughts in general on that being sort of a way to make sense of transgender for people that don't have direct experience with it.
BAILARSo being transgender is not an illness. It actually was taken out of the DSM. So it is not -- it is not technically an illness. I think, like, we -- transgender people are human, just like everybody else, and we have mental illness issues sometimes. So I've had depression in my life, but that's not because I'm trans. So to make sense of it, I tell people, like, you identify one way, and you've always identified one way in terms of gender. It's the same with me. It's an identity. It's a core piece of who I am, just like being a woman or being a man or however you identify is a core piece of who you are.
BAILARAnd that doesn't make me sick. It just -- it just makes me who I am.
WARBELOWEvery major medical association, every major psychological association, has identified that the appropriate way to respond to someone who is transgender is to affirm their gender identity. So if, you know, someone who assigned female at birth identifies as male, the appropriate way to handle that situation for the child's psychological well-being and physical well-being is to recognize that that child is a boy and to support him in his transition.
BAILARYeah, and the things that do affect mental health are not affirming identity. And that -- it's not just because, like, just for trans people, it's for anybody. If you don't affirm who they are, if you don't accept people for who they are in any facets of their identities, I think that can really damage somebody psychologically.
REHMNow Schuyler, did you go through a lot of treatment and psychological assistance as you were transitioning?
BAILARWhen I was transitioning, no, that was a time of relief and happiness for me. But previously, before that, in high school, I had a lot of mental health issues because I was so at war with myself, with who I was, and I didn't understand a lot of who I was because I didn't have the vocabulary to explain my identity, I didn't have the vocabulary to explain who I felt I was. So I felt really at conflict, and that was really hard.
BAILARAnd that doesn't happen -- again, it's not trans-specific. If you are at conflict with who you are, that creates depression in just -- like in normal senses. You know what I mean? It's just because I'm trans.
REHMAll right and to Eli in Goldsboro, Maine. Glad to have you on the air, Eli.
ELIThank you very much for having me.
ELII was curious what the panelists think about a different aspect of the letter, the part where these students have to have been living a transgendered life in order to access the restroom and what sort of situation we may have set up, particularly in places that impose the policy, where it's oh, well, you're not transgendered enough?
REHMAll right, we'll have to respond to Eli's question after we take a short break. You can join us, 800-433-8850. I look forward to hearing from you.
REHMAnd welcome back. Just before the break, our caller in Gouldsboro, Maine, Eli, was asking about what happens when a young person is in the midst of transitioning. At what point is that young person free to use the opposite sex bathroom? Sarah Warbelow.
WARBELOWYou know, that's something that the student needs to decide in conjunction with their parents and with the school district. You know, but at its core, it's at the time that's right for the student. There's over 600,000 students in school districts all across this country that already have proactive policies in place supporting transgender students. And it's just not a problem at all.
REHMAnd Matt, how do you respond to that?
MR. MATT SCHLAPPSure, I would say if you look at the letter itself, what it says is there's no medical diagnosis or treatment requirement that students must meet. And so I look at this and say, a student can walk in one day, walk up to his principal and say, I now identify as a female. I want to use female restrooms, locker rooms, et cetera. And that obviously raises some of those privacy concerns that we've been discussing all of this. Is that this creates the ability for a male student to walk in one day, identify as a female and gain full access in violation of those female students' rights to privacy.
MR. MATT SCHLAPPAnd that's where these schools need to be able to have the ability to say, well, look, we understand that. And we will offer you an accommodation. We've got several single stall restrooms changing areas that we'll open up to you. But we've got to preserve our female students' right to privacy.
REHMMatt, may I ask you, do you know of any situation like that, that has developed where a previously self-identified male has walked in one day, changed his mind, said, I'm a woman. I'm going into the girls bathroom.
SCHLAPPUnfortunately yes. We actually heard of one in Washington state where they had passed this, required it on schools, but also businesses and whatnot, and so there was a local fitness facility, whatnot, and there was a male that walked into the girls' locker room and said, I'm allowed in here now. I now identify as a male. And there was a lot of young girls that had just come in there from swim practice and some of the parents were raising concerns, rightfully, about their daughters' right to privacy.
SCHLAPPAnd the response was, this is the law now. We have to allow this. He has a right to be in here. And so, this is...
REHMAre you talking about children or adults?
SCHLAPP...this was, this was at a community facility, but there were children, young girls in there while this man walked into this girls' locker room. But it was for girls...
REHMYou're saying a man -- you're saying a man walked in to a young girls' locker room?
SCHLAPPA man walked into a female's locker room at this gym and there were girls in there that had just come from swim practice. It wasn't a YMCA, but a similar facility where you've got adults and children all sharing the same locker rooms and shower facilities.
BAILARMatt, if I can step in.
REHMSure. Go ahead.
BAILARIt sounds like what you're saying is you're afraid of a Cisgender man, am I correct, walking into a female's bathroom and potentially putting kids at risk?
SCHLAPPNo. The concern is a privacy one.
BAILARWhat's the privacy issue?
SCHLAPPIs that there are biological and anatomical differences between males and females and the reason we have, as a society, have always had separate facilities, is recognizing that those biological differences justify protecting the right of privacy, of not being exposed to someone of the opposite sex when changing or showering. And that's what our courts have always recognized is this right to privacy.
DAVISJust to be clear, the guidance itself requires that a student, parent or guardian actually notify the school that, you know, that the student is gonna assert a gender identity that's different than what the school has on record or what the representation has been previously. So, it's not really about a student walking in one day and saying, oh, I decided I'm a girl or oh, I decided I'm a boy. This is -- this would have to be a conversation that the student family has with the administration of the school.
BAILARAnd I also...
SCHLAPPActually, let me disagree with that, because it says right here, the department interprets Title IX to require that when a student or the student's parent or guardian as appropriate, notifies the school. So a student does have the right to notify that. And if you look at some of the other documents they've produced, they've actually told schools, sometimes you may not be allowed to notify that student's parents if the student is not ready to identify as the opposite biological sex to his or her parents. And so, there has been guidance out there that has said, sometimes schools can't even disclose that information to parents.
BAILARAnd that's to protect the student, because sometimes there are parents that are bullies as well. So, I think that also you're overlooking the fact that trans students who are coming in and asking to use a bathroom that would make them more comfortable have spent hours, maybe years, crying themselves to sleep at night, trying to figure out how they're going to come up with this. How they're going to be able to present themselves in a way that makes them feel safe and comfortable.
BAILARAnd by the time they've talked about it with somebody, they have finally got the courage to do that, and that's more courage than most people have in a lifetime. So, for somebody to be able to do that is huge and to beat the kid down just because they are trying to be who they are and be authentic, which is also more than many people can say in this world, is terrible.
WARBELOWSadly, what we're seeing is that there are individuals who are opposed to protections for transgender people who are actually behaving badly. And that's an instance in which Matt is describing. This is a man who admitted that he was trying to make people uncomfortable, entered into a women's locker room because he disapproves of laws protecting trans people.
WARBELOWNobody really complained or had a problem. He walked back out and then admitted it to the general public. So there really wasn't a problem, other than the fact that there are men who disapprove of these laws and are behaving badly.
BAILARAnd the other -- sorry, let me just add.
BAILARThe other thing is that if somebody is going to be a predator and so something like that, they're going to be a predator anyways. These people are criminals, and a criminal already has no regard for the law, which is why they are a criminal. And passing this law isn't going to change somebody who doesn't have any regard for the law. It's not going to change their behavior.
REHMTo Dallas, Texas. Good morning, Diane.
DIANEGood morning. Thank you so much for having this program. And I think it's Matt, I just want to applaud you. Matt, I'm the mother of a female to male transgender young man. And I just want to say that what I hear is fear-mongering. And it hurts me to the core to hear how people need to set aside equal rights and promote fear of which bathroom people are going to use.
REHMI think what you meant to say was you commend Schuyler.
DIANESchuyler. I'm so sorry. You're right.
REHMWho is -- that's all right. That's all right. I know, I know how confusing it may be.
REHMBut just wanted to clarify that...
REHM...Schuyler is a member of the Harvard swim team, First Division of the NCAA transgender athlete who competes on any men's team. So...
BAILARThank you very much. Send my best to your son.
REHMDiane, yes, tell us about your son, Diane.
DIANEMy son is 22-years-old. He has been transgender for about two years. He finished his Bachelor's and is moving to D.C. actually, to go to school in D.C. for a Master's at American, so we're very, very proud of him. And being a parent of a child who has transgender, your biggest thought is one of safety. And safety for your child. And when North Carolina gets everybody whipped up into a frenzy about who should use what restroom, that trickles down. And somebody just said, men behaving badly. That trickles down, and as a parent, I just -- I can only hope that we can become more accepting of differences.
DIANEAnd I'm not calling different, I'm saying more accepting of choices.
REHM...sure. Tell me, did your son experience safety issues along the way?
DIANENo. I do not believe he did, but I need to say that he's been out of Dallas. He went to school elsewhere and so I'm not -- I don't really know his day to day.
DIANEI do not believe he does.
DIANEOr he did. He started using men's bathrooms as a freshman in college and did not start really testosterone and having surgery until after that.
DIANEBut he has not, but I think as a parent, when you hear about how ugly some people can be, you fear for safety. That's my primary fear, his safety.
REHMAll right, Matt. Do you want to comment?
SCHLAPPAnd again, I would go back to my original point is that we don't think anyone should be bullied or harassed. And I think what we've seen here from both Schuyler's story and this caller is that we do have a society that is very accepting of transgendered individuals, that aren't out to bully them and harass them, but we also have people that are just raising common sense concerns about privacy. And so in all of this, I still go back to the question of, what about these other students? What about these other parents, in Chicago, for example?
SCHLAPPThe 63 students. What about their concerns and their interests? And all that seems to be happening in a lot of these discussions is their concerns don't matter. Only the concerns of the transgender students. And we're offering a solution that says, every student's concerns could be addressed. That we can protect privacy for everybody by offering accommodations and single stall restrooms and things like that to any student that's not comfortable with communal lockers and showers and restrooms. But that we don't have to break down the traditional distinctions and locker rooms and restrooms and whatnot.
SCHLAPPIt's why Title IX was drafted the way it was originally. It's to allow schools the ability to have those separate facilities on the basis of biological sex.
REHMAll right, and Schuyler, I know you spoke to the Massachusetts Senate before it voted on a bill last week to ban discrimination in public spaces like bathrooms. What did you say to the Senate about the issue that Matt raises, one of privacy.
BAILARWell, I'd just like to respond to Matt as well. I think -- I don't think that we're protecting tradition or protecting privacy here. I think what he's -- to me, what it sounds like he's fighting for is he's preserving fear. And he's preserving fear of trans people because it's -- there's no, there's very little substantiated cases of any trans people actually having issues that he has raised. Also, to respond to your question, I spoke to the Senate, and my standpoint is not a political standpoint, because I'm not a politician. I'm just a student.
BAILARAnd a swimmer. Is just that I'm human. I'm a skateboarder, I'm a writer, I have an iPhone. And I also swim and I'm also trans. But my viewpoint is just one of being human and I'm just a kid trying to find my way in the world like everybody else. And I think that I should be given the same respect as everyone else and the same rights.
REHMAll right, to Portsmouth, Virginia, and to Ryan. You're on the air.
RYANThank you for taking my call. I think that this is executive overreach. Really, because we live in a country where the majority gets what the majority wants and it's as it should be. Now, I think that transgender people should be able to live their life however they want to, you know, but they have to know that when they make these changes to themselves, it's gonna be an uphill climb. And the President really doesn't have the right to force that on anybody, especially a majority of people.
RYANI think that if you're going to have any lasting impact, it has to come from Congress. And you know, for example, you know, I'm gay. But if I went into Mississippi and somebody decided they didn't want to serve me at their business because I'm gay, you know what, that's their choice. The majority of people in Mississippi decided they don't like that. You know, I just think that it has to come from an overwhelming consensus of a majority of America if any real change is going to happen.
REHMSarah, do you want to comment?
WARBELOWSo first of all, the guidance was requested by school districts all over the country. The administration responded to what was a very real need from schools and school districts who wanted to have a better understanding of how Title IX applied to them. And Title IX is a law. It is itself not guidance. It was passed by Congress. It has been interpreted by courts like Title VII of the Civil Rights Act of 1964 to provide protections for transgender people.
REHMAnd you're listening to "The Diane Rehm Show." What about that, Matt? Title IX does provide a great deal of protection, privacy issues and covers not only women but men and we presume transgendered people.
SCHLAPPYes, I agree that transgender people are offered the exact same protection as everyone else under Title IX and that they get to use the restrooms and locker rooms and whatnot of their biological sex and that they're also protected against gender discrimination. But if you look at the history of Title IX, 40 years, that it was never meant to thwart the ability of schools to have separate locker rooms and restrooms on the basis of biological sex. And I think it's notable that Senator Al Franken has for several years tried to pass legislation that would essentially extend Title IX protections to gender identity and that Congress has declined to do that.
SCHLAPPAnd so what this guidance document, this executive authority is showing is that when we can't get what we want and we can't follow the Democratic process, we're just going to come in and unilaterally force this on every school in the country, take away the ability of schools to craft local solutions that meet their needs. And strip away this fundamental right of privacy for all students.
BAILARMatt, how would you enforce this law, your, like HB2 or any of these bathroom laws? How would you enforce that? How would you keep me out of the men's bathroom?
SCHLAPPI think that you regulate this the same way schools have always regulated this issue. Is that you look at a student's birth certificate and you...
BAILARMy birth certificate says male.
REHMEvery time they want to go to the bathroom?
SCHLAPPNo, not every time. Not at all.
BAILARMy birth certificate says male, Matt. How are you going to keep me out of the bathroom?
SCHLAPPWell, I think states and schools can use the birth certificate as a proxy and say, all right, if you, when you enroll in our school, if you identify as that which is on your birth certificate, it lists that you're a male, then we're going to expect you -- we're going to treat you as an adult. We're going to expect you to use the restroom. And if there's concerns that are raised, then we can address that. They always have, for hundreds and hundreds of years. If you had a boy go into the girls' restroom or locker room, the school can step in and investigate and take necessary steps to do that.
SCHLAPPThat's the easiest way to do that, because the opposite is, as the administration is saying, you can't have any tests. And so, if a student walks in one day and says, I now identify as the opposite sex, you can't question the motive, you can't do anything under this guidance document. You immediately have to allow that student to use whatever restroom he or she now identifies with.
WARBELOWI'm sorry to say that's just completely false. If a boy wants to enter the girls' restroom, the school absolutely can stop them from doing it if they are not a girl. What the guidance requires is that you allow all girls into the girls' restroom, including transgender girls.
WARBELOWThat you allow all boys into the boys' restroom and locker rooms, including transgender boys. And birth certificates are not easy to change. Some states don't allow people to change their birth certificate at all. Some states have very high hurdles. Others, you know, are a little bit easier. They vary dramatically from state to state. And you can only change your birth certificate in the state you were born in.
REHMJulie, what do you see happening here?
DAVISWell, what I see happening, I will agree with your caller on one point, which is that I think this is going to be, as others have mentioned, challenged in the court. There are going to be situations here, and I talked to someone from the School Board Association who pointed this out, where the federal interpretation, the interpretation of federal law is going to be at odds with state law. And that would certainly be the case in North Carolina right now. And it may be the case going forward in other states where the state law says one thing about the rights of transgendered people and the federal interpretation of Title IX says something else.
DAVISSo, at some point, you're going to have a lawsuit or a set of lawsuits. And again, we've seen some of these cases already, but now that there's federal guidance, there's going to be a body of law here that's going to be sort of established. And Congress may indeed have to weigh in. Congress and the courts are going to have to figure out how this is going to actually be...
REHMAll right, and I'm afraid we'll have to leave it there. You even have one case in Texas where the school board is in conflict with the state. One school's superintendent in Texas said President Obama's letter is going straight to the paper shredder. So, we have lots to talk about, to see what happens. I want to thank you all for being with us.
BAILARThanks for having us.
SCHLAPPThank you so much.
WARBELOWThank you so much.
REHMAnd thanks all for listening. I'm Diane Rehm.
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