Last year, Atherton High School in Louisville approved a policy ensuring that transgender students can access all spaces and activities in accordance with their gender identity, but now a Kentucky state senator wants to ban all transgender students from safely using the bathroom.
Sen. C.B. Embry Jr. (R) has introduced what he calls the Kentucky Student Privacy Act (SB 76), which would force all students to be identified by their “biological sex” as determined by their chromosomes and what was assigned to them according to their anatomy at birth, essentially erasing transgender students. The bill requires that bathrooms and locker rooms must be divided according to “biological sex,” and schools are forbidden from accommodating transgender students by allowing them access to any facility “designated for use by students of the opposite biological sex while students of the opposite biological sex are present or could be present.”
Instead, transgender students requiring accommodation must settle for “access to single-stall restrooms, access to unisex bathrooms, or controlled use of faculty bathrooms, locker rooms, or shower rooms.” This means that if the only such facility is in the nurse’s office, for example, a student would be required to schlep as far as that office is to use the restroom — or not go at all.
Moreover, Embry wants to actually punish schools (like Atherton) that respect trans students’ identities. The bill provides that any student who encounters “a person of the opposite biological sex” in a bathroom or locker room shall have a legal cause of action if it’s because the school gave the trans student permission or didn’t explicitly prohibit the trans student from using that facility. The “aggrieved” student would be entitled to $2,500 from the offending school “for each instance” he or she encountered a trans student in a sex-divided facility in addition to monetary damages “for all psychological, emotional, and physical harm suffered” and attorney fees.
Embry claims in the bill that allowing trans students to use the bathrooms they identify with “will create a significant potential for disruption of school activities and unsafe conditions” and “will create potential embarrassment, shame, and psychological injury to students.” He also identified the legislation as an “emergency” bill because “situations currently exist in which the privacy rights of students are violated.”
There is no evidence that respecting trans identities will create unsafe environments in schools. So far, California’s statewide law protecting trans students has generated no such problems. This is no surprise, as many of the state’s schools already had such protections in place for many years without incident. That hasn’t stopped conservatives from trying to place transphobic parents in the spotlight, who claim that their daughters are unsafe simply because they saw a trans student in the bathroom — fully clothed.
Other states like Utah have proposed similar anti-transgender bills, but so far they have not advanced.
Despite Embry’s urgent concern for cisgender students who might happen to see a transgender student in the bathroom, he isn’t worried at all about what challenges LGBT students might be facing. In 2013, then-Rep. Embry opposed a comprehensive anti-bullying bill that would have added sexual orientation and gender identity to the state’s protected classes. He claimed that the state already had sufficient laws against bullying. “We have a death penalty against rape and murder but they still happen,” he said at the time.
Some parents tried to challenge Atherton’s policy, but the Jefferson County Public School appeals board stood by it. Atherton Principal Thomas Aberli said that after several months, there were no problems with the policy. “Our decisions were founded on facts and on the proper way to treat people,” he explained.