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  • Writer's pictureLeslie A. Farber

The Fight Over Transgender Bathroom Rights

The debate over the legal rights of transgender people continues at the national, state and local levels. The discussion centers around specific legislation, now commonly referred to as “Bathroom Bills,” which aim to regulate public bathroom access by making it illegal for people to use a restroom that does not align with the sex they were assigned at birth. Generally speaking, proposed laws would require transgender men to use the women's bathroom and transgender women to use the men's restroom. In March of this year, the Supreme Court declined to hear a high-profile case on transgender bathroom rights, tossing out a ruling that allowed Gavin Grimm, a transgender boy living in Virginia, to use the restroom of his choice. The justices ordered that a lower court reconsider the case in light of new guidance issued by the Trump administration. At issue is whether Title IX's anti-discrimination measures can force schools to allow transgender students to use school bathrooms and locker rooms of their chosen gender identity. The Obama administration previously issued guidance that said it did require this. However, in February, the Trump administration rescinded federal protections and did not provide a new federal directive. This leaves the decision in the hands of individual states. According to the National Conference of State Legislatures, North Carolina is the only state that has passed a bathroom bill, which it has since repealed after facing considerable public backlash that included the cancellation of high profile sporting and entertainment events. However, in the 2017 legislative session there have been sixteen states, including New York, that have considered laws that would restrict access to multiuser restrooms and locker rooms on the basis of a definition of sex or gender. New Jersey is one of fourteen states that have considered legislation that would limit transgender students' rights at school. The New Jersey bill, which is still pending from the 2016 legislative session, is in response to federal guidance issued last May regarding schools’ obligations to transgender students. What does this mean for parents and students who live and attend school in New Jersey? State law does not specifically address the issue of transgender students’ access to school bathrooms and locker rooms. However, it does protect people from discrimination based on gender identity or expression, saying that all students must have equal access to educational programs and services. In line with these regulations, last year the New Jersey Department of Education directed school districts to pass policies explaining how they handle issues related to gender identity. They did not offer any guidance on what the policies should say. The New Jersey School Boards Association did give districts a sample policy, based on its interpretation of state and federal law, which provides access to the restroom or locker room of the gender identity a student consistently asserts at school. However, since neither the state nor the association keeps track, there is no way of knowing how many of New Jersey’s more than 500 school districts have put policies in place. Until the state addresses the specific issue of transgender access to school bathrooms, school districts will continue to develop their own policies. If this issue is of concern for you or your family, I can help you access the information you need and understand your rights under current state law. Do not hesitate to contact me at 973-509-8500 x213 or email. The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances. #transgenderrights #bathroombill #transgenderstudents

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