Make Way for Transgender High School

From The Wall Street Journal

'Gender identity' trumps any squeamishness girls might feel about sharing bathrooms with boys.

By JAMES P. EHRHARD

On July 1, 2012, a law went into effect in the Commonwealth of Massachusetts titled "An Act Relative to Gender Identity." The law added the term "gender identity" to the state's antidiscrimination statute, joining far better known terms like "race," "religion," "sex" and "national origin." The statute now also applies to "gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth." The common term these days is "transgender."

The need for this addition to the antidiscrimination law was never clear. The existing statute appeared to apply to every citizen of Massachusetts who could conceivably be the object of discrimination. "Sexual orientation" was already on the menu.

The new law's strongest proponents estimated that no more than 33,000 people would come under the umbrella of those having "gender identity" concerns. That means the statute was rewritten to cover 0.51% of the state's population (6,464,144 as of July 2012, according to the U.S. Census Bureau), even though advocates for the change were never able to show evidence of widespread transgender discrimination.

There was always a hint of the absurd in the movement for "An Act Relative to Gender Identity." Now the absurdity has come to the fore with the Massachusetts Department of Education's directives for the treatment of transgendered public-school students under the law. It's not clear how many students are among those the law is intended to protect, but the education bureaucrats are looking out for them. The 11-page directive, released on Feb. 15, reads like it was written by someone who believes that anatomical and biological differences between the sexes are about as significant as the differences between individuals in shoe size or hair color.

Some of the highlights include allowing transgendered and gender-questioning students to use the bathrooms of their choice or to play on sports teams that correspond to the gender with which they identify. Schools are directed to eliminate gender-based clothing (at some graduations, boys wear blue robes and girls wear white, or they used to) and gender-based activities (including not having boys and girls line up separately to leave the classroom).

Transgender students are those whose assigned birth sex doesn't match their "internalized sense of their gender," the directive says, and they "range in the ways in which they identify as male, female, some combination of both, or neither." Therefore, "the responsibility for determining a student's gender identity rests with the student."

Under the order of the guidelines, a 16-year-old high-school junior who says that he believes he is a girl has the right to use the girls bathroom and locker room. (But before boys who are unconfused about their gender get any bright ideas, the guidelines are ready: The transgender feelings must be "sincerely held." School staff can challenge anyone who seems to be making the assertion for "some improper purpose.") If a female student feels uncomfortable and objects to the boy's presence when she is in the bathroom, the rules say, the complaint "is not a reason to deny access to the transgender student."

It is a given that nearly all teenage girls will feel deeply uncomfortable having an anatomical male of any sort using the same bathroom or locker-room shower. That is the reality of human life, and no young woman should be forced to endure such embarrassment. As for an anatomical but transgender girl showering in the boys locker room, that hardly bears contemplating.

At least the guidelines seem to recognize the trouble they invite: "The Department strongly recommends that districts include an appropriate number of gender-neutral restrooms commensurate with the size of the school, and at least one gender-neutral changing facility, into the design of new schools and school renovations."

But what the guidelines don't recognize is that it is impossible to erase the differences between the sexes, even if a politically connected few would wish it so. It is entirely possible, though, to erase common sense and replace it with a policy that gives transgender students more rights and privileges than their classmates.

Mr. Ehrhard, the owner of the law firm Ehrhard & Associates, P.C., in Worcester, Mass, is an elected member of the Tantasqua (Sturbridge, Mass.) Regional District School Committee.

A version of this article appeared March 4, 2013, on page A13 in the U.S. edition of The Wall Street Journal, with the headline: Make Way for Transgender High School.