Univ. of North Carolina Has No Idea How to Enforce Bathroom Laws

UNC students protest
UNC students protest the university president's decision to adhere to HB 2

The University of North Carolina is advising administrators and staff to abide by the state's controversial new law requiring transgender people to use the restroom or locker room that does not match their gender identity. 

In an internal memo released Thursday, university president Margaret Spellings said that the 17 campuses in the UNC network must follow House Bill 2, which was rushed through the legislature in a single day-long special session and signed by the governor March 23.

“University institutions must require every multiple-occupancy bathroom and changing facility to be designated for and used only by persons based on their biological sex,” the memo stated.

Spellings advised that HB 2 doesn’t override any existing nondiscrimination protections for students and faculty — except when it comes to the kinds of facilities trans students are allowed to access. 

The American Civil Liberties Union, Equality North Carolina, and Lambda Legal condemned Spellings’s position on HB 2 in a joint statement released later the same day. “It’s incredibly disappointing that the University of North Carolina has concluded it is required to follow this discriminatory measure at the expense of the privacy, safety, and wellbeing of its students and employees, particularly those who are transgender,” the groups said.

Chase Strangio, a staff attorney with the ACLU's LGBT and HIV Project, says the UNC memo puts transgender students "in an impossible position.”

“Of course, there won't actually be gender inspectors at the door of every restroom," Strangio says in an email to The Advocate. "But the law and the University's decision to follow it … will increase gender policing and harassment across the state. This policing will inevitably target most severely the transgender people of color who already experience the most violence and harassment at the hands of individuals and through systemic discrimination by the government.”

The biggest issue surrounding HB 2 is that the legislation lacks clear guidelines about how its policies should be implemented, leaving those decisions up to universities and school districts. “The law simply has no enforcement mechanism,” Strangio notes.

Todd Rosendahl, director of school outreach with Charlotte’s Time Out Youth Center, which provides after-school programs fot LGBT students, said that lacking state guidance, schools don’t know what to do with the new law.

“They’re stuck," Rosendahl says of the scenario North Carolina schools now find themselves in. "Should they be following federal guidance or should they be following state law?”

In December 2014 the Obama administration released a 34-page memo that clarified its official stance on Title IX protections — which prohibit discrimination on the basis of sex, race, and national origin in education — for transgender students. The memo stated that under Title IX of the Education Amendments of 1972, schools must “treat transgender students consistent with their gender identity in all aspects of the planning, implementation, enrollment, operation, and evaluation of single-sex classes.”

Rosendahl believes that the passage of HB 2 send schools a “mixed message,” especially for faculty and staff who want to provide support for transgender students. And memos and statements from federal agencies may not offer the clear guidance these professionals need.

“The problem is that on the federal level, it’s just guidance from the Department of Education and the Office for Civil Rights and it’s not specific law or policy that’s in place,” he says. “I know from conversations with school districts that I’ve had that is a concern because there’s not that legal precedent to back up the guidance itself.”

Because the bill was passed so quickly — within a span of 12 hours with minimal public comment — educators had little time to educate youth about how HB 2 affects their day-to-day lives.

“We’ve had a lot of youth come or email and call us about what [this law] means for them,” Rosendahl adds. “There’s some uncertainty. The bill was specifically targeting restrooms and locker rooms, but a lot of youth didn’t know if this affected dress code or if they would have their names and pronouns honored.”

The students Rosendahl works with are not only confused by this legislation. He explains that many also feel hurt by it. “A lot of youth feel like they’re being targeted,” he says. “We understand that feeling. A lot of youth don’t feel like going to school or being themselves in public now.”

In making trans students feel singled out and excluded, Strangio believes that HB 2 could have a severely detrimental effect on transgender youth across North Carolina. The law, he says, is “dangerous because it codifies anti-trans discrimination into state law and has the effect of further stigmatizing [trans students] with potentially serious physical and mental health consequences.”

In an op-ed for The Charlotte Observer, Bob Simmons agreed. Simmons, executive director of Charlotte’s Council for Children’s Rights, argued that policies like HB 2 will only exacerbate the violence and abuse trans students already experience in schools.

“Lack of protection for LGBTQ people in laws like HB2, and negative messages in the rhetoric behind those laws, embolden the peers of our LGBTQ children and youth to bully them and to assault them, most often in the restrooms and locker rooms they must share because of the sex listed on their birth certificate,” he wrote. “A study released in 2009 found that 53 percent of transgender students have been physically harassed (e.g., pushed or shoved) in school in the past year because of their gender expression.”

A January 2014 survey from the University of California, Los Angeles’s Williams Institute showed that transgender people — particularly youth — already have a high risk of suicidal ideation and harmful behaviors. According to the progressive think tank, 41 percent of trans individuals attempt suicide at some point in their life, as compared to just 4.6 percent of the overall population.

Research consistently shows that LGBT youth are much more likely than their straight, cisgender (nontrans) peers to report being bullied or harassed at school, and that such incidents can hinder the student's educational success. In April 2015, 64 congressional Democrats asked the federal Department of Education to take action to protect LGBT students from harassment and bullying in school. 

The Gay, Lesbian, and Straight Education Network's latest School Climate Report, published in 2013, found that most LGBT students experienced discrimination at school, with 65 percent of students saying they heard anti-LGBT language "frequently or often," and 30 percent reporting they missed at least one day of school in the past month because they felt unsafe going to class. A staggering 75 percent of transgender students reported feeling unsafe at school, notes the National Center for Transgender Equality.  

Such discrimination not only increases LGBT youth's already-elevated risk of depression, suicide, and substance abuse but can also prompt students to drop out of school. 

Facing that reality, University of North Carolina students and staff have already begun to protest the school’s official policy on trans bathroom use. Joaquin Carcaño, a 27-year-old staffer at UNC-Chapel Hill’s Institute for Global Health and Infectious Disease, told the Washington Blade that the university’s enforcement of HB 2 is blatantly discriminatory.

“Not only does this policy fail to protect my rights as a loyal and hard-working employee and make it harder for me to do my job, it sides with ignorance and fear,” Carcaño said. “All I want is to use the appropriate restroom, in peace, just like everyone else. But now I am put in the terrible position of either going into the women’s room where I don’t belong and am uncomfortable or breaking the law.”

Carcaño is one of three plaintiffs — along with Payton Grey McGarry and Angela Gilmore — filing a federal lawsuit with ACLU of North Carolina and Equality NC to challenge HB 2. According to the plaintiffs, the policies of North Carolina and now UNC undermine protected civil rights of transgender students.

“By singling out LGBT people for disfavored treatment and explicitly writing discrimination against transgender people into state law,” the suit reads. “HB 2 violates the most basic guarantees of equal treatment [by] the U.S. Constitution.”

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