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The lines are drawn in national debate over transgender bathroom access

May 13, 2016 at 6:40 PM EDT
The Obama administration’s new directive that all public schools should allow transgender students access to restrooms that correspond with their gender has intensified a nationwide fight over the issue. For more on the reaction to the order and its possible impact, Hari Sreenivasan talks to Jeremy Tedesco of the Alliance Defending Freedom and Alex Myers of Phillips Exeter Academy.
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JUDY WOODRUFF: The battle over the use of school facilities by transgender students has already flared up in North Carolina and in other communities, including in Southeastern Virginia and a Chicago suburb.

But the directive to all U.S. public schools from the Obama administration spreads it across the nation.

Hari Sreenivasan is in our New York studios tonight, and has more on the reaction and possible impact.

HARI SREENIVASAN: I’m joined by two people who have been involved on both sides of this issue.

Alex Myers is an English teacher at Phillips Exeter Academy, a private school in New Hampshire. He’s also an author and speaks frequently about gender identity. He’s transgender, came out in high school and was the first openly transgender student to attend Harvard. And Jeremy Tedesco is senior legal counsel with Alliance Defending Freedom, a faith-based legal advocacy group. It represents several groups of parents that oppose allowing students to use school bathrooms based on gender identity.

Alex, let me start with you.

Why is this so significant to you?

ALEX MYERS, Teacher, Phillips Exeter Academy: This is really a moment of recognition that is unparalleled.

I think the transgender community has been existing at the margins not only of mainstream society, but also in some ways of the LGBT community. And President Obama’s and Loretta Lynch’s statement earlier this week really bring us out of the shadows and into the mainstream.

HARI SREENIVASAN: Jeremy Tedesco, your organization is involved in two different lawsuits in Chicago and in North Carolina to try to prevent these types of policies from rolling out.

Are there a lot of students not transgender who are trying to go into the other bathrooms, so to speak? I mean, why is this a step too far?

JEREMY TEDESCO, Alliance Defending Freedom: Well, I really appreciate you having us on. And I’m glad we can be on PBS and have a civil discourse about this whole issue.

The reality is, ADF, Alliance Defending Freedom, where I work, has been pushing out policies to school districts for several years now, policies that are promote a compassionate alternative that meets the needs of every student at the school.

So, our policy says students who for whatever reason are uncomfortable using the locker room or shower or restroom designated for their biological sex should be given alternative facilities, single-stall facilities or whatever is available at the school. Almost all schools have those available.

But they shouldn’t allow the privacy rights of other students to be violated in providing those accommodations. There’s interests, rights on both sides of the equation in the bathroom and locker room contexts. Students have an expectation of privacy in those facilities.

And the Obama administration is completely trampling those rights by directing schools to just let students of one sex into the locker rooms and restrooms of students of the other sex.

HARI SREENIVASAN: Alex, how is a school supposed to strike this balance to try to protect the privacy of all students, as Jeremy says, not just the transgender ones?

ALEX MYERS: Well, I first think that the basic thing a school needs to do is educate and train faculty, administration and students, just so people are aware.

I think a lot of the problems are actually caused by ignorance, rather than actual incidents. But in terms of privacy and in terms of what was just outlined, I think that the problem with having a separate single-gender, single-use bathroom is that you’re really mandating that something that sounds like separate but equal, when we want is for people to coexist together, for there not to be segregation of any kind.

In terms of privacy rights, I think you might be looking at modifying particularly locker room facilities to allow every student, cisgender and transgender, for more privacy. And I think that what you will find largely is that transgender want to go into restrooms, want to go into locker rooms, they want to use those facilities, they want to use discreetly, and they value their own privacy.

And they are not likely to intrude on others. I would also add that I find I rather ironic that, at this point in time, the conservative movement is mentioning privacy as a right, when, for so many years, they enacted and enforced sodomy laws, which had no respect for people’s privacy.

HARI SREENIVASAN: Jeremy, in the joint letter today from the DOJ and the Department of Education, there were examples of school districts from Alaska to Kansas City to Massachusetts that all have created policies in figuring a way through this without any lawsuits.

Why aren’t these fixes good enough? Sometimes, it was as simple as a stall with a door or a curtain.

JEREMY TEDESCO: Well, if you put a stall — for instance, the Illinois lawsuit, where we filed the lawsuit against the Department of Education and a school district outside of Chicago, they did install a few privacy stalls inside the girls locker room, but that doesn’t solve anything, because those stalls are inside the locker room.

And the biologically male student has to walk through the locker room while girls are changing for P.E. class. They are in a state of undress. That happens every day of the year, every year of school, because P.E. is a mandatory class at that school.

So these girls have to suffer the humiliation, the degradation, the affront to their dignity and the privacy violations on an everyday basis in the school. It doesn’t solve the problem. See, privacy rights say that a person of the opposite sex, they stop at the door to the locker room, not at some door to some private stall inside the locker room.

The bar is at the door to the locker room. And that’s — just that’s consistent with the expectation of privacy that we have always had in our society when it comes to the use of these kinds of facilities. And, again, that right is protected by the U.S. Constitution.

And so what the Obama administration is promoting is something that tramples the privacy rights and the dignity of girls at schools across the country and boys. You know, in Illinois, we have 63 student plaintiffs, 130-plus plaintiffs altogether. These people, you know, they’re religious, they’re not religious.

You know, privacy is something that cuts across religious and ideological lines, and these people just want their children’s right to privacy protected by their schools and by the federal government.

HARI SREENIVASAN: Alex, what do you say to those parents who are in this lawsuit?

ALEX MYERS: I think that the time has come to be a little bit more educated and a little bit more open.

I really have not heard of any incidents of harassment or assault. I’m not aware of there being any legitimate problems that have been voiced by cisgender students. And, again, I think that the majority, the vast majority, the overwhelming majority of transgender people who use public facilities want to do so with respect to their own privacy and their own discretion.

It simply has not risen to any attention that I know of that there’s been any problem with the use there.

HARI SREENIVASAN: Jeremy Tedesco, on your site, there — you also seem to be drawing almost an inference that allowing transgender people these rights is the equivalent to shielding sexual predators.

The examples that you cite on the blog repeatedly seem like either people who are political activists or perhaps sexual predators. Are you trying to equate the two groups?

JEREMY TEDESCO: Well, of course not.

And we don’t think that providing access to people who are truly struggling with gender identity issues is going to be a safety problem. The problem is that these laws allow people to simply self-identify as the opposite sex and gain access.

You can’t tell me, based on all the evidence that’s out there, that people who have, you know, unconscionable purposes, that want to, you know, take advantage of these kind of policies, use them as a ruse to gain access will not do so.

I mean, look, there is a criminal element out there that will do that. We need to recognize that, as a culture, but we also need to recognize the privacy problems. You know, the idea that there hasn’t been any kind of report of some kind of safety problem in a particular situation or a particular school really doesn’t respond to the problem.

The problem is the privacy violation, the incredible amount of uncomfortability, humiliation, degradation and embarrassment that our clients in Illinois, for instance, the girls in the locker room, experience on a daily basis.

Some of the girls in our lawsuit aren’t using the restroom very much at school. They’re holding it all day long. We have another girl who wears her gym clothes under her regular clothes, so she doesn’t have to undress in the locker room.

And then she has to wear soiled, dirty gym clothes the rest of the day just so she can try to preserve her privacy and her dignity in the locker room. We shouldn’t be doing that as a culture.

HARI SREENIVASAN: Alex Myers, there is not necessarily a card that you get when you’re transgender. How do you get over that sort of identification problem, when a transgender individual or any individual wants to identify and go into an opposite locker room? What’s going to be the simple rule that works at the parks and recreation department or high school?

ALEX MYERS: I think that you find most transgender people use the bathroom that they feel matches their gender identity and that they can pass in, so that the one that they’re going to walk into and not be kicked out of, the one that they’re going to walk into and not cause an incident.

It really takes special circumstances for a transgender person to walk into a space where they know they are going to be rejected. That’s when the fear of harassment and abuse, in my mind, comes to light.

And I would simply say that there simply hasn’t been a case of any abuse or harassment or any problem of a person being a predator in these spaces posing as a transgender person. Transgender people have been using public facilities that match their gender identity for years and years, and that simply hasn’t happened yet.

HARI SREENIVASAN: Jeremy Tedesco, finally, I want to ask you. There are going to be people watching this interview thinking to themselves almost everything that the plaintiffs in these cases that he’s representing, if you just substituted the word transgender with race, this sounds like what people said 50 years ago.

JEREMY TEDESCO: Well, there is simply no comparison.

I mean, here’s the thing. Title IX, which is at the source of all of this, which, by the way, oh, the Obama administration is radically reinterpreting and just ignoring Congress’ will by forcing its political agenda on the country, Title IX, for over 40 years, has said that schools can comply with Title IX by having separate facilities, locker rooms, restrooms and showers for girls and for boys.

That is not the equivalent of race discrimination, and the suggestion that it is, is just a tactic to try to get people to shut up and not express their opinions about this kind of a topic. It’s not the same thing. It’s been recognized under the law for 40-plus years. It’s a entirely rationale and reasonable division between the sexes in those kinds of facilities.

HARI SREENIVASAN: All right, Jeremy Tedesco, Alex Myers, thank you both.

ALEX MYERS: Thank you.

JEREMY TEDESCO: Thank you.

JUDY WOODRUFF: Thanks to you all.

And there is much more online, including our report this week on how the U.S. military is working on its new rules for transgender service members. That’s on our home page.

Plus, you can watch “Frontline”‘s full documentary, “Growing Up Trans.” That is streaming now at PBS.org/Frontline.

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