Jacques: Let courts settle transgender school fight

Ingrid Jacques
The Detroit News

The American Civil Liberties Union has led the charge nationwide to force schools to comply with allowing students to use bathrooms and locker rooms based on their gender identity — rather than their gender at birth.

And now the ACLU of Michigan, following a complaint from a student, is looking into a West Michigan district that appears to have gone astray from this narrow playbook.

Jenison Public Schools has a policy that allows transgender students to use gender-neutral restrooms and staff restrooms — or the bathrooms that match their birth gender.

That’s not good enough for the ACLU. This case hits at the heart of the issue, which has played out in the limelight the past year — both in this state and around the U.S.

Jenison Superintendent Tom TenBrink has defended the policy, saying the district treats all students with respect. But the ACLU penned a letter to the district, stating such a policy “stigmatizes” students and impairs their right to have a safe learning space.

The ACLU is acting like this matter is settled law. But it’s far from it. Last May, the Obama administration put schools on notice, with a letter stating officials had deemed the federal law banning sex discrimination in schools (Title IX) also included gender identity. If schools didn’t comply with allowing students to pick bathrooms and locker rooms according to their gender identify, federal funds would be at risk.

Hans Von Spakovsky, senior legal fellow at the Heritage Foundation, says the Obama guidance was flawed from the beginning.

“Don’t try to redefine the law in a way it wasn’t intended,” he says. “They had no legal authority to do that.”

Last year, Michigan’s State Board of Education also put together its own recommendations for schools, mirroring the federal ones.

This issue is still very alive in the courts, especially now that the Trump administration has backtracked on the Obama policy. In light of this, the Supreme Court last month chose to send a case dealing with a transgender student in Virginia back to the lower courts.

Until the courts — or Congress — clarify the law, individual school districts, along with parents, should set policies that reflect their communities’ values.