Among the saddest and cruelest acts in the first five weeks of chaos in the Republican controlled U.S. government was directed at one of the most vulnerable and besieged populations in our country – transgender school children.
The Trump Whitehouse countermanded guidelines for non-discriminatory bathrooms and locker facilities in public schools issued last year by the Obama administration. The Republicans did so claiming it was a matter of states’ rights, leaving transgender children to the tender mercies of gender authoritarians in transphobic states and school districts.
It was much more than a symbolic move – putting thousands of children at risk of profound emotional damage and even physical harm. But there was a symbolic message as well. Republicans showed once again they care more about protecting their prejudices than they do about protecting the lives, freedoms and mental health of children who are brave enough to simply want to live an honest life.
Declaring that the treatment of transgender school children is a matter of states’ rights not human rights, the Trump administration is practicing a form of LGBT segregation that echoes the bleak days of Southern resistance to Brown v. Board of Education and the desegregation of public schools.
Allowing schools to hide their biases behind claims of state sovereignty and its justification in the10th Amendment will further deepen the anxiety of kids who are often scapegoats and victims of a savage kind of bigotry that aims to make them seem like freaks, subjecting them to the tortures of exclusion, rejection and violent ridicule. Some who justify this point of view have gone so far as to portray transgender children as being voyeurs or sexual predators in disguise. It’s an absurd accusation on the face of it.
Imagine the profound perplexity of coming to the conclusion at an early age that the sexual body you were born with does not match the gender identity you were also born with. When this realization comes upon you as a child, you need all the kindness, wisdom and support you can get. Like other alienating genetic realities, gender dysphoria as it’s called, must be traumatically confusing at first. And when you find the courage to speak of it, its potential dangers must become painfully obvious as well. Transgender kids are not predators or peeping toms. They are isolated, often ostracized young people trying to make their way in the world. Protecting their civil rights does not put so called normal kids in danger when they are using the bathroom. It is not a safety issue for them but for the transgendered.
“Transgender youth are extremely vulnerable to a multitude of problems, including substance use disorders, suicide, childhood abuse, sexual abuse/assault, and psychiatric disorders,” a heavily documented article in Wikipedia explains. “There is evidence that around 75% of transgender youth were verbally abused by their parents or caregivers, and around 35% had faced physical abuse at the hands of their caregiver.” In the National Transgender Discrimination Survey of 2011, some 41% of the almost 6,500 transgender people surveyed said that they had attempted suicide.
Even in New Mexico, known for its protection of LGBT civil rights, transgender children have no recognized statewide guarantee of acceptance and understanding when they go to school, even though it’s been illegal to discriminate against LGBT people in New Mexico since 1975. But the legal context and cultural perspective to challenge transphobic school practices is in place. In 2013 the state Supreme Court ruled that same-sex couples and different-sex couples had the same legal rights. It follows then that everyone does. But after the Trump Whitehouse declaration that transgender bathroom policy was a state’s prerogative, the AP reported the Martinez Administration’s Public Education Department (PED) expressed hope that separate school districts in New Mexico would come up with their own transgender bathroom policies. I’m sure the New Mexico Supreme Court will hear a case on transgender discrimination in the near future. We need a statewide policy protecting the civil rights of transgender school children as soon as possible.
Those of us who have transgender friends can experience indirectly the dire emotional struggles they face everyday. A dear friend of mine very late in life decided that he had hidden the truth of himself long enough. After following all the formal psychiatric and medical protocols, he successfully underwent gender transformation surgery. His life as a woman, however, was plagued not only by America’s chronic misogyny but by the deep prejudice our culture has about transgendered people. As a woman, my friend suffered several attempted rapes, fell into an inescapable depression, and tragically killed herself when she could no longer face the threat of continued sexual abuse.
Recently the courage of Gavin Grimm, a transgender male student at a high school in Gloucester County, Virginia, has given the plight of trans kids national attention. The ACLU represents Gavin in a suit against the county school board. The ACLU argues that the bathroom policy of the high school “is unconstitutional under the Fourteenth Amendment as it violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination by schools.” This is the law that had informed President Obama’s guidelines.
Gavin suffers from “severe gender dysphoria,” the ACLU says. He and “his mother notified (school) administrators of his male gender identity at the beginning of his sophomore year so that he could socially transition in all aspects of his life.” With the school’s OK, “Gavin used the boys’ restroom for almost two months without any incident.” But then complaints from other parents revealed the prevailing prejudices of the community. And the school board changed its mind.
Gavin Grimm’s suit pits the 14th Amendment’s guarantee that “No state shall make or enforce any law which shall abridge the privileges…of citizens of the United States … nor deny to any person within its jurisdiction the equal protection of the laws” against the 10th Amendment which says that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people.”
The influence of the10th Amendment and states’ rights can be positive and culturally empowering. It’s all in how they are interpreted and to what ends they serve. States’ rights allows California, for instance, to create it own stringent smog-defeating air pollution laws, and New Mexico to be constitutionally a bilingual state. But the 10th Amendment and states’ rights in general have been used since the 1950s to oppose the federal government in defense of segregation and Jim Crow and all manner of other forms of discrimination and exclusion.
It seems certain to me that the U.S. Supreme Court will be asked to rule on a case like Gavin Grimm’s. And while the arguments will be couched in historical precedent, conflicts in subtle judicial ideologies, and national sentiment, the real issue will always be this – does the state have the right to oppress young people because of their gender identity? Does it have the right to oppress, harass, intimidate, and humiliate them, or anyone, because of their intrinsic difference from the “norm”? The answer will always have to be a simple, resounding “no.” Human rights and civil rights morally outrank states’ rights.