Representative David Hale (R-Menifee, Montgomery, & Powell Counties) has pre-filed B.R. 1020, the Kentucky Student Privacy Act, which would require students to use the school restrooms and locker rooms of the gender they were assigned at birth, rather than the facilities consistent with their gender identity, and provides for a private cause of action against any school district that fails to prevent transgender students from using the facilities associated with their gender identity.
The Kentucky Youth Law Project, Inc. OPPOSES this harmful legislation for the following reasons:
- This anti-transgender “bathroom bill” would effectively deny transgender students the use of public school bathrooms, locker rooms, or changing rooms that match their gender identity.
- This bill denies equal protection of the law under federal and state constitutions.
- Title IX of the Civil Rights Act rejects the argument promoted by the bill’s sponsor that anti-transgender “bathroom bills” prevent sexual violence. Further, the federal law requires public schools to treat all students equally with regard to their sex or gender. Arguments of this kind are not only not based in reality, they are dangerous.
- A recent study found that since 2003, there have only been 20 instances of alleged bathroom sex crimes involving either a transgender person, a cisgender man intentionally taking advantage of a law protecting transgender bathroom access, or cisgender men disguising themselves as women to gain access to women’s bathrooms.
- By comparison, the same study found 154 cases in the U.S. since 2004 of cisgender men who allegedly committed bathroom sex crimes and did not attempt to disguise themselves as women or claim to be protected by laws expanding transgender bathroom access.
- The real danger of assault is faced by transgender students who, every single day, have to weigh whether to use the bathroom in their school and potentially be attacked, either verbally or physically, by other students, or avoid using public facilities entirely, which leads to a number of health risks to the transgender student, including a higher rate of urinary tract infections, heightened anxiety and depression, and suicidality.
- To claim that this bill protects students’ right to privacy is misleading. Politicians take advantage of people’s insecurity surrounding bathroom usage and their fear of others who are different to propagate myths about the power of these anti-transgender laws to stop attacks in bathrooms and to protect student privacy.
Anti-transgender legislation focuses on bathroom use because the proponents of this legislation have found that in other states, like North Carolina, they could use these bills as a means of discrediting and preventing the passage of legitimate anti-discrimination laws that would protect LGBTQ+ people without adversely affecting the rights and privileges of non-LGBTQ+ people.
If Rep. Hale is concerned about student privacy, a better solution would be for the legislature to provide funding to schools so that they can modify their facilities to create more privacy for all students, such as by installing locking doors on toilet stalls, building floor-to-ceiling dividers between stalls, and creating more single-use restrooms, rather than communal restrooms.
And providing a private cause of action will only create a stronger financial incentive for schools to discriminate against transgender students and faculty and drain our schools of funding that could better be used to pay for new textbooks, school supplies, and educational resources. That pits transgender students against their fellow students and their community, and singles them out for discriminatory attacks.
The Kentucky Youth Law Project, Inc. vows to fight B.R. 1020 and educate legislators about better ways that they can protect every Kentucky student without creating pariahs out of a small group of students who just want to be able to go pee in peace.
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Written by Keith D. Elston, founder and legal director of the Kentucky Youth Law Project.