Gender discrimination in schools

The California Education Committee has filed a complaint calling for declaratory judgment over California's planned change of language in their school antidiscrimination code. In particular, the rephrased statute replaces "sex" with "gender", and include "sexual orientation" to the list of topics against which teachers cannot discriminate. Gender is not only the physical sex of the person, but also how the person self-identifies and behaves.

Many of the arguments raised in the complaint are fairly poor. The complaint makes a lot of the teachers having to "have foreknowledge of the private mental impressions, thoughts, and disabilities of each person withwhom the educational institution comes into contact." The claim here is that one might unknowingly discriminate.

This line of reasoning falls apart in the face of the other, unchallenged categories for which it is unlawful to discriminate -- ethnic group identification, race, national origin, and religion among them -- which are invisible but which educators routinely refrain from discriminating against.

The practical argument has to do with restrooms and lockers. The plaintiffs are convinced the change in wording will allow all the boys to go into the girls' restrooms just by claiming transgendered status, and that this will constitute a violation of privacy and safety under California's constitution. I don't know that this is necessarily what the change in language intended, but the transgendered community makes their feelings well enough known that it seems it should have been contemplated as a possibility.

Somehow, it seems somewhat dubious that there would be a huge rush of typical juvenile boys identifying themselves as transgendered just to get these privileges. The social stigma is pretty high just for a chance to sit on the same toilet seat as a girl, or even the potential of changing in the same locker room as a girl (and thereby what? Maybe seeing a girl change briefly? In my high school, we never removed our underwear in the locker rooms). Though a lot of blogs fret over the possibility, I suspect nearly all of those who self-identify as transgendered do indeed have gender identity issues.

The plaintiffs cite the California constitution's promise of safety and privacy to support their claim that the change in wording is unconstitional. I have very little doubt the privacy clause in the California constitution was intended to limit government agents from invading privacy, not to place a duty on the government to keep residents from invading each other's privacy and/or safety. After all, if a transgendered person could invade someone's privacy, why couldn't a person of the same gender identity? If safety and privacy are that much of an issue, why aren't they pushing for everyone to have individually lockable private bathrooms?

The plaintiffs are probably right that requiring allowing transgendered individuals into the bathroom they identify with is a break from tradition, and therefore cultural expectations. However, it is a legislative change of culture, not a judicial one. The legislature is permitted, indeed intended, to make such changes. When the courts do it they are frequently criticized for judicial activism, even though many lauded freedoms were won only through the court's interpretations.

The Advocates of Faith and Freedom don't put their real reasoning into the complaint at all, but it is available on their website.

Senate Bill 777 and Assembly Bill 14 are radical threats to religious liberty. They attempt to eliminate your right to exercise your faith in everyday life by telling you that all forms of discrimination are illegal.

Yes, what they really want to argue is that discrimination based on gender identity or orientation is a religious right. Never mind that the bills apply specifically to educators in performing their government duties, something some of the religious refuse to wrap their heads around. This complaint isn't about privacy at all: it's about preserving the right to vilify homosexuals or prevent the status of being homosexual from being "normalized". The religious have been fighting -- and losing -- this battle for years.