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Mass. Guidelines Rule in Favor of Students Over Their Parents
BY Brian Fraga
BOSTON — Young grade-school girls in Massachusetts may feel uncomfortable if a boy wants to use their locker room and restrooms in school.
But if that boy identifies as a girl — regardless of his actual biological gender — then girls will just have to deal with it, according to guidelines published earlier this year by the Massachusetts Department of Elementary and Secondary Education.
"This discomfort is not a reason to deny access to the transgender student," the guidelines say, adding that school administrators and counseling staff should address the students’ discomfort and "foster understanding of gender identity."
If a boy or girl — no matter his or her age — says he or she identifies with the opposite sex and insists on being called a different name to reflect that gender, then teachers and students have to go along with it, or face disciplinary action.
"It’s almost like Big Brother taking over and telling us how to think and feel," said Patricia Doherty, executive director of Catholic Citizenship, an independent Catholic grassroots networking organization in Massachusetts.
Doherty said that she believes the state’s Catholic bishops will need to urge local school districts not to adopt the state education commissioner’s guidelines, because state law does not demand that transgender people have access to sex-segregated facilities such as bathrooms.
James Driscoll, executive director of the Massachusetts Catholic Conference, the public-policy arm of the state’s Catholic bishops, told the Register that the education commissioner’s guidelines run counter to the state Legislature’s intentions when it passed a law in 2011 that banned discrimination against transgendered people.
Driscoll said the conference and other organizations successfully lobbied lawmakers to remove a provision from the law that would have allowed people to use public bathrooms and other gender-segregated public facilities according to the gender they identify with.
Driscoll said the Massachusetts Catholic Conference is supporting new legislation that specifically says people must use those facilities corresponding to their biological gender.
J.C. Considine, a spokesman for the Massachusetts Department of Elementary and Secondary Education, told the Register that the guidelines — which were published on Feb. 15 — are meant to be advice, not a directive, for local school districts.
"This is our interpretation of the law and advice to school districts on how to implement the law," Considine said, adding that situations at the local level will have to be handled on a "case-by-case basis."
In late April, the Massachusetts House of Representatives added an amendment to its fiscal 2014 budget that would allow school administrators, with input from parents, to implement policies to not "cause discrimination and safety issues." The amendment is yet to be acted on by the state Senate.
Local school district officials have said they are studying the guidelines, while noting that they already have non-discrimination policies in place.
During the House budget debate in late April, state Rep. Carl Sciortino, a Democrat from Medford, said the education commissioner’s advisory was a "conversation starter" that had created a positive discussion in his district.
However, critics remain skeptical.
"If I were a superintendent of a school system in the state, I would feel obliged to go by the guidelines put out by the commissioner of education," said state Rep. Elizabeth Poirier, a North Attleborough Republican who has co-sponsored legislation to ensure that people can only use restrooms, locker rooms and changing facilities consistent with their anatomical sex.
"It’s very hard to wrap your mind around this whole situation," Poirier said.
The issue is not unique to Massachusetts. A growing number of states have implemented or are considering similar policies for transgendered students.
On May 9, the California Assembly voted to allow transgender students to participate on sports teams and use bathrooms that correspond with their gender identity, not their biological sex.
Meanwhile, in central Pennsylvania, a female high-school senior who identifies as a boy was pushing to be called by her male name during the school’s graduation.
A 6-year-old boy in Colorado — who identifies as a girl — has also drawn national headlines, after the local elementary school said he could not use the girl’s bathroom.
In 2011, the Massachusetts Legislature passed a law that amended the state’s anti-discrimination statutes, including on the basis of gender identity. Among the amended statutes was a provision that prohibits discrimination on the basis of gender identity against students in public schools.
The state Department of Elementary and Secondary Education, under the leadership of Commissioner Mitchell Chester, assembled a working group to examine the law and craft the guidance for local school districts. That working group consisted of educators, school and district leaders and several representatives from homosexual-advocacy organizations, including Gay and Lesbian Advocates and Defenders, the Mass Transgender Political Coalition and Greater Boston Parents, Families and Friends of Lesbians and Gays.
The department’s guidance quotes statistics provided by the Gay, Lesbian and Straight Education Network, which reported in a 2011 national survey that 75.4% of transgender students had been verbally harassed in the previous year, 31.2% had been physically harassed and 16.8% had been physically assaulted.
"A fundamental concern here is that every student has a safe and supportive learning environment," Considine said.
The guidance makes several controversial assertions about transgender identity, including the claim that gender is an "innate, largely inflexible characteristic of each individual’s personality that is generally established by age 4."
However, the guidance’s definition of transgender is "extremely broad," said Andrew Beckwith, an attorney and executive vice president of the Massachusetts Family Institute.
"This has nothing to do with discrimination. This is part of an agenda to do away with gender distinctions," Beckwith told the Register.
The guidelines say that schools must respect a self-identified transgender student’s desire to be called a certain name and pronoun, regardless of the student’s legal name and assigned birth sex.
The transgender student would have the right to use the bathroom, locker room or changing facility corresponding to the gender he or she identifies with. In sex-segregated classes and athletics — including intramural and interscholastic team sports — the transgender student would participate in the activities corresponding to his or her gender identity.
If transgender students "transition" — meaning they start living as the opposite gender — after high school, then they have the right to ask the school to reissue their diplomas and amend their school records to reflect their chosen name and gender.
School districts are also advised to eliminate gender-specific activities and policies, such as dress codes that require girls to wear dresses to National Honor Society inductions or having different colored graduation gowns for boys and girls.
The schools are also being told to foster a "positive" school culture where student leaders learn about the gender-identity law and that professional development for school staff should include topics on gender identity and gender nonconformity.
However, teachers may question a student’s gender identity if they have reason to believe that the student is claiming to be transgender for "some improper purpose," such as a boy just wanting to get inside the girls’ locker room.
Meanwhile, the guidelines also enable students to keep their gender identity secret from their parents if they believe their parents would not approve. In those situations, teachers and principals would not be permitted to inform parents that their children are identifying with a different gender during the school day.
"My third-grade boy could go to school, change his name, put a skirt on, and I’d be none the wiser," Beckwith said, adding that the guidelines are disturbing on a variety of levels.
"First of all, our children, beginning in kindergarten, are going to be subject to the claim that gender is something you choose and that children as young as age 4 can determine what their gender is. That is very confusing and disrupting to young children," Beckwith said.
"The policy also attempts to create what is essentially a speech code in schools, that if any student stands up for biblical truth that recognizes that God created man and woman in his image and that your anatomy actually matters, then those students from Christian families will be disciplined by the schools for speaking the biblical truth, not in a hateful way, but for refusing to deny a biological and spiritual reality," Beckwith added.
Poirier, the Massachusetts state representative, said she and other lawmakers recently met with Commissioner Chester to discuss the guidelines, which she and others say run counter to the 2011 law. Earlier versions of the legislation — dubbed the "bathroom bill" — had included a provision that transgender people could use public facilities such as bathrooms of their choosing, but that provision was removed before the Legislature passed the bill in 2011.
"This comes down to local school districts knowing what the law is," Catholic Citizenship’s Doherty said, adding that her organization helped defeat lawmakers who supported the "bathroom bill" because Massachusetts voters did not support it.
Said Doherty, "Six-year-old girls have a right to be comfortable in the bathroom."
‘Why Are We Doing This?’
Poirier, who voted against the bill in 2011, said most of the lawmakers’ concerns fell on deaf ears, including a question she asked Chester about how many transgender students are really enrolled in the Massachusetts public schools.
"[Chester] said he couldn’t quantify it. He did not have any numbers," Poirier said. "Which leads me to ask, ‘Why are we doing this?’ If this really is a big issue in the schools, you have to deal with it, but if this is just a drop in the bucket, why do we have to do this?"
Brian Fraga writes from
Fall River, Massachusetts.