by Gloria Rebecca Gomez, Arizona Mirror
February 1, 2023
Harrison knew when he was five that he was different, but he didn’t have the words to explain why he belonged in the boy’s restroom, and not forced into the girl’s. When he came out as trans in middle school, his classmates reacted with threats of assault.
Being able to use the right bathroom then seemed like a hopeless wish, and for years he made the trek across campus to use the one in the nurse’s office. Today, Harrison takes dual credit classes at a vocational high school in the East Valley, where he’s finally allowed to use the men’s restroom.
“It’s very gender-affirming,” he said. “It’s improved my mental health.”
But a new proposal, introduced by a GOP lawmaker with a history of anti-trans legislation, seeks to reverse all the progress Harrison has made. Senate Bill 1040 mandates that public schools provide an alternate option to people who are “unwilling or unable” to use the multi-occupancy restroom or locker room that matches their biological sex.
One option given is a single-use employee bathroom. If someone shares a bathroom or locker room with a person of the opposite sex, and the school allowed that to occur, they would be able to sue and recover damages for their “psychological, emotional and physical harm.”
The bill’s sponsor, Sen. John Kavanagh, told the Arizona Mirror it serves as a middle-ground approach for trans people and those who have reservations about sharing public facilities with them.
“This is a reasonable compromise which provides everybody with the space to change, shower and go to the bathroom,” he said. “(People) feel very uneasy when there are people of a different biological (sex) standing next to them naked.”
This isn’t the first time the Fountain Hills Republican has tried to keep trans people out of public restrooms in Arizona. In February 2013, the Phoenix City Council voted to expand its anti-discrimination ordinance, adding sexual orientation and gender identity or expression to the characteristics people can’t be discriminated against for in employment, housing or other public accommodations. Less than a month later, Kavanagh gutted an unrelated bill about massage therapy board members to make it a class 6 felony to simply enter a public restroom, shower or dressing room that is opposite of one’s biological sex.
When that effort failed, Kavanagh authored a new measure protecting businesses that chose to bar trans people from using facilities that best fit their gender identity. It, too, was ultimately defeated.
Last year, amid a record wave of anti-LGBTQ bills across the country, Kavanagh reworked his bathroom bill into one targeting schools. This year’s legislation is identical to last year’s, which didn’t make it past initial committee discussions.
The new bill hasn’t yet been voted on in committee, although it was prematurely added to the agenda for the Senate Education Committee on Jan. 18, alongside Kavanagh’s pronoun bill, which prompted transgender Arizonans and allies to fill the room to voice their disagreement. To date, it hasn’t been assigned to any committees, but it has until mid-February to be heard.
Determining the ‘value’ of debate
It’s highly unlikely this year’s iteration will make it into law, either. Democratic Gov. Katie Hobbs has previously denounced laws that target the trans community, and her chief of staff, Allie Bones, summarily dismissed Kavanagh’s anti-trans bill restricting preferred pronoun use in schools as dead on arrival.
Still, Kavanagh hasn’t lost hope and noted that, even if his bills fall victim to Hobbs’ veto pen, there remains value in discussing them.
“We need to have public debate. We need to inform legislators and people in the public,” he said. “People’s minds can be changed — but, regardless, voters need to know where I stand and where the governor stands, and where every legislator in this building stands on critical issues.”
That’s not an argument Jeanne Woodbury, a lobbyist for LGBTQ advocacy group Equality Arizona, agrees with. Continued discussions about the “morality” of trans identities and their place in the public sphere is just an attempt to encourage hostility towards the LGBTQ community as a whole, Woodbury said.
“There’s no real debate, there’s no real issue that exists between trans people and their communities,” she said. “But, because trans people are such a small segment of the population — and very frequently misunderstood — they’re a very popular target for these fear-mongering campaigns.
“That’s why they’re still sponsoring these bills when they know they have no chance to succeed — because whether or not they pass, they perpetuate that rhetorical campaign of fear.”
That’s concerning for Harrison, who attended school in conservative Pinal County, and where he encountered the most vitriol from fellow students. (Harrison is not his real name, but is a pseudonym because he fears retaliation from classmates.) Bigger school districts, like the one he now goes to in Phoenix, are generally more accepting, he’s found, but he worries legislation like Kavanagh’s bathroom bill and the rhetoric that arises from it could endanger other trans students in more rural areas, especially if they’re not perceived by their peers as fitting their gender identity.
“When we push these bigoted ideas into our schools, it leads to a lot of problems,” Harrison said. “If we didn’t have bills that are constantly attacking us, we would have less people attacking us.”
Transgender people are over four times more likely to experience violence than non-transgender people. And restricting which public facilities they can use invariably raises that likelihood. A Harvard study found that students who attend schools that deny them access to bathrooms and locker rooms matching their gender identity face a significantly increased danger of being sexually assaulted.
Limited school resources
Tami Staas, the executive director of Arizona Trans Youth and Parent Organization, is both a mother of a trans man who suffered in Arizona schools during less accepting times and a teacher who questions the logistics behind Kavanagh’s proposal.
“As a teacher, these are the least of my worries,” she said. “We have completely underfunded schools. We are making it more difficult, not only for our students, but our educators, too.”
Staas wondered who, among the already overworked school staff, would be in charge of making sure that students don’t go into the “wrong” bathroom to prevent future lawsuits.
“If I send a child to the restroom, that child’s on their own. I am not walking that child to the restroom,” she said. “Are we going to need to hire someone to make sure the right people go in the right restroom? Who’s going to fund that position? Or are we going to put the burden on the children to call each other out? That seems like a bad idea.”
Schools, Staas added, should be a safe place where all students can thrive and live up to their highest academic potential. But bills like Kavanagh’s only succeed in driving trans and LGBTQ students away. Absenteeism rates, which are high among LGBTQ youth, decline and performance improves when they feel supported in the classroom, according to studies from GLSEN, a pro-LGBTQ education organization.
Instead of saddling schools with more unfunded mandates and the threat of lawsuits they can’t afford, Staas said lawmakers should consider a hands-off approach that lets schools deal with issues that arise on a case by case basis — if they arise at all.
“Why are we passing laws to accommodate maybe one student, when we can make accommodations on site?” she asked. “We’re not going to change the whole system just to make them comfortable.”
The big picture: a federal fight — maybe
Arizona is far from the only state to consider implementing a bathroom ban. From 2013 through 2016, as many as 24 states introduced their own versions. Two states have succeeded since then: Alabama and Tennessee have both passed laws that separate bathrooms and locker rooms by biological sex. More recently, a federal appeals court ruled last month that a similar policy at a Florida public school is constitutional, setting up an appeal to the U.S. Supreme Court, which has previously refused to consider the question.
In 2020, the high court decided in Bostock v. Clayton County that federal civil rights law protected LGBTQ workers from employment discrimination, but Justice Neil Gorsuch made sure to say that the ruling was narrow and made no attempt to address bathrooms or locker rooms. That’s a decision for future cases, Gorsuch wrote in the majority opinion.
And while advocates might get a chance to elicit such a decision from the Supreme Court by appealing last month’s ruling from the Florida case, they’re wary of what might result from a newly conservative court that’s unafraid of overturning landmark cases.
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