The country watched the Supreme Court very closely last week as they heard oral arguments on California’s gay marriage ban and the ban on federal benefits to gay couples. I think it is becoming increasingly clear, regardless of how a person feels about the issue, that the LGBT community will inevitably achieve some kind of major victory. The question is not if, but to what extent.
Take for example, the story of six year old Coy Mathis. Despite being a boy, Coy preferred Barbie’s to dinosaurs since she was eighteen months old. When Coy was four, she told her mother something was wrong with her body. Doctors diagnosed her as transgender. When Coy went to school, the doctors recommended that she be treated like a regular girl.
For the most part, Eagle Elementary School agreed. Coy was allowed to wear dresses, use the girl’s restroom, and everyone referred to Coy as “she” or “her”. In general, Coy was treated as a girl. In December 2012 though, the school decided Coy could no longer use female restrooms. Eagle Elementary informed the Mathis family that Coy would either have to use the boy’s restroom or the gender neutral restroom in the nurse’s office.
The Mathis family responded by pulling their daughter out of the school and then suing the Colorado school for violating the Colorado Anti-Discrimination Act, which prohibits discrimination against transgender students in public schools. The Mathis’s feared that Coy would be bullied and harassed if Coy were forced to use the boy’s bathroom. The school replied that it had made its decision after considering the reactions of parents and the discomfort of Coy’s peers as Coy’s body developed in the future. There have been no such complaints from other parents though.
Although homosexuality has been accepted by many Americans, the “B” (bisexuals) and “T” (transsexuals) in LGBT have not had the same public relations successes. For transgender, public acceptance appears to be low, although the law has an easier type grasping the concept since traditional gender discrimination between men and women fits transgender issues much better than questions of sexual orientation. So, we must first consider whether barring Coy from using the girl’s restrooms and/or forcing Coy to use boys or gender neutral restrooms is a discriminatory act.
The problem is that people often have a different understanding of discrimination in gender debates. Failure to treat everyone the same, like refusal to hire women as doctors, is discriminatory because it treats women differently from men. However, failure to treat people differently based on biological differences, such as forcing women to use the men’s restroom, is also discriminatory because it unfairly disadvantages women. The two rules are contradictory, so the challenge is to reconcile them.
In this case, the school actually manages to violate both notions of discrimination. Coy believes she is a girl and since the school is not treating her like other girls, there is discrimination. At the same time, the school’s failure to recognize Coy as a girl has also resulted in discrimination because forcing Coy to use the boys’ restroom after being free to use the girls’ restroom for so long would led to bullying and harassment.
The school defends its actions by saying that it is worried about the rights of all its students, not just Coy’s. Astute readers will notice that the school is not claiming its policy is sound because Coy is actually a boy. There are plenty of medical opinions and research to contest the assumption that gender is purely binary. Intersex persons, persons who physically have genitals which conform to neither gender, exist and thus dispel the assumption that everyone is born either male or female (a google image will suffice). More importantly though, the Colorado Anti-Discrimination Act assumes that people can change their gender because the act specifically protects students who do change or who want to change their gender.
However, the idea that the collective community interests of the student body trump the individual rights of Coy is still not a valid argument. First, the issue is not legally ripe: since no parent has actually complained to the school, it is not an actual issue right now. Second, I don’t think the issue will ever likely to come up. Children usually do not take an interest in each other’s genitals until they reach puberty.
This will be a problem when Coy gets to middle or high school, but elementary schools have to provide some evidence that this is actually a legitimate concern from kindergarten to sixth grade. Even in high schools though, students generally close the doors before using the restroom. There might be one or two cases of sexual harassment, but existing security precautions and criminal laws are more than adequate.