Missouri bills seek to address transgender restroom debate

Amid national debates about the access transgender people have to public facilities like restrooms, locker rooms and showers - in which fear seems to swirl about as pervasively as water circling down drains - two Missouri bills seek to force transgender people to use private restrooms and changing and shower facilities as opposed to facilities that match the gender with which they identify.

Proponents of legislation like Senate Bill 98 in Missouri feel they owe people - students in particular - measures to protect their safety and privacy and fear anything less would compromise those entrusted responsibilities.

The bill's sponsor - state Sen. Ed Emery, R-Vernon County - said the aim of his bill is "mostly just the safety of every student," and the state is "not going to force people to shower with folks who are not the same gender."

Emery's bill seeks to designate "every public school restroom, locker room and shower room designated for student use, and which is accessible by multiple students at the same time," to be only for students of the same biological sex.

Individual students who tell school officials they identify with a gender other than their biological one would be provided with alternative, private accommodations - provided their parent or legal guardian agreed to such accommodations through written consent.

Emery said these measures are consistent with tradition when it comes to public bathing and lavatory facilities - "when we only had males and females." He said gender has never been an open question before recent years, and courts have created a new distinction - "a new list of individualism that has to be addressed."

In addition to SB 98, state Rep. Jeff Pogue, R-Salem, has sponsored House Bill 202, which seeks to ensure all public restrooms are "gender-divided," and single-occupancy public restrooms may be designated as unisex. The bill would also prevent political subdivisions of the state, businesses, buildings and other facilities with public restrooms from enacting ordinances or policies that conflict with the bill.

Pogue did not provide comment to the News Tribune.

The fear in the state's lesbian, gay, bisexual and transgender communities is the legislation will promote or provoke discrimination against LGBT people. This is not the first Missouri legislative session in which bills addressing transgender individuals' access to public restrooms have been put forth, but the two bills come at a time when the stability of federal anti-discrimination rules under the incoming Trump administration is a more open question.

"It's definitely just an unsure period," said Katie Stuckenschneider, communication director at PROMO, or Promoting Equality for all Missourians.

"Hang tight and take it a day at a time," is what she said she tells people in the LGBT community.

Last May - amid the continuing political, legal and economic fallout from a controversial transgender bathroom access law in North Carolina - the federal education and justice departments released joint guidance to school districts on how to accommodate transgender students.

The Department of Justice said, "The guidance makes clear that both federal agencies treat a student's gender identity as the student's sex for purposes of enforcing Title IX."

Following the release of that joint guidance - and a list of best practices for accommodating transgender students the Department of Education released - the Missouri School Boards Association (MSBA) released a policy for districts to allow transgender students to use the restrooms that match the gender with which they identify.

However, amid developing court cases nationwide that question this Title IX interpretation - and after receiving feedback from Missouri school districts that said they didn't want to follow the first policy - MSBA attorney and Executive Associate Director Kelli Hopkins said the association came up with a second policy that allows school districts to instead provide private bathroom accommodations for transgender students.

"Unless state law says you must adopt a policy, we will make districts aware of it but won't say they have to adopt a (specific) policy," she said.

Hopkins said the norm right now for accommodating transgender students in schools is to examine each student's situation on a case-by-case basis. This is something local districts reiterated, too.

Jefferson City Public Schools Superintendent Larry Linthacum said JCPS wouldn't allow a student to use the facilities that match the gender they identify with, as opposed to their biological one.

"The bottom line is we want to create a safe environment for our students," Blair Oaks Superintendent James Jones said. He added, though, the district does not want to discriminate against anybody.

Jones said "every building (in the Blair Oaks district) has a facility that could be utilized" to privately accommodate transgender students. Linthacum said JCPS's policy is the same.

In JCPS buildings, Linthacum said if a transgender student requests alternative facilities, counselors and that building's principal would have conversations with the student and their parents or guardians about what those could be - a bathroom or shower in a nurse's or counselor's office, for example.

Both superintendents also said arrangements like these would be made for their students who visit other schools for extra-curricular activities and vice versa - provided they are made aware ahead of time.

Emery agreed his bill's provision to require written consent of parents or guardians in order for a district to provide alternative accommodations could spark some disagreements, in the event a parent or guardian refuses to give such consent.

"Hypothetically, it's hard to deal with that," he said, but he added such disagreements would be "no different any other disagreement that might happen" between parents and school officials.

He felt it was important in the bill for parents to have that power of consent. "Children belong to parents," and "I don't know who you'd give that (power) to if you didn't give that to parents."

Emery did say in theory, a child could take a case to court, and court is where it seems most everyone believes the issue of accommodation will end up - regardless of whether the latest federal guidelines are modified or overturned by presidential executive authority.

"I definitely think this will go to the Supreme Court," Stuckenschneider said.

Hopkins said the MSBA - and by extension Missouri school districts - "won't truly know what to do" until courts settle the matter.

She said MSBA "will probably recommend that districts follow state law" if federal rules don't change but state regulation does if a bill like Emery's passes and is signed into law.

Emery said he doesn't anticipate the same sort of economically costly reaction in Missouri to a bill like his as opposed to the North Carolina legislation, because the scope of his bill is "confined to those students who are entrusted to state government" for their safety, security and privacy.

In the meantime, neither local superintendent said their district has much experience in accommodating transgender students, and Linthacum said more guidance on what exactly gender identification means would be good.

Stuckenschneider said there have been zero incidents that jeopardized the safety of non-transgender students in Missouri school districts that have taken up policies allowing students to use facilities that match their gender identity.

If anything, she said it's transgender students who fear using the restroom.

According to the executive summary of the recently released 2015 U.S. Transgender Survey Report - which analyzed the responses of 28,000 nationally surveyed transgender people in the U.S., ranging in age from K-12 students to adults - more than half of transgender people avoided using a public restroom in the past year because "they were afraid of other confrontations or other problems they might experience" - physical or verbal harassment or even assault.

One third of people surveyed said within the past year they limited the amount they ate or drank in a day to avoid having to use a public restroom. Eight percent of respondents - more than 2,000 people - said they had developed a urinary tract infection, kidney infection or another kidney-related problem in the past year from avoiding using public restrooms.

"It's a very real situation," PROMO Executive Director Steph Perkins said, noting most if not all Missouri school districts have transgender students in attendance.

According to a report from the Williams Institute at the UCLA School of Law, in addition to the 0.6 percent of the U.S. adult population who identify as transgender - 1.4 million people - 0.7 percent of youth ages 13-17 identify as transgender - 150,000 teenagers.

Perkins said he understands concerns like Emery's for the privacy of all students.

He said "very few schools have open showers anymore," though, and there are simple, low-cost solutions to provide privacy for students who want more - like hanging shower curtains around certain areas of locker rooms.

Perkins said in addition to school districts, it's students who will have to "stand up for each other and their peers" when it comes issues of bathroom and shower access.

Stuckenschneider said for transgender students not to be able to use the bathroom that matches the gender with which they identify equates with not being able to use the bathroom at all, which could mean they don't attend school.

"Trans students just want to be able to use the restroom that matches the identity they live by every day," she said.

She added "understanding can definitely be a daunting task," when it comes to people unfamiliar with the transgender community educating themselves about the realities of life of transgender individuals beyond fears and stereotypes.

"It's just a matter of letting people know trans people have been around for decades. They're your neighbors, whether you know it or not."