Important notes of caution in a brewing Georgia fight over bathroom rules

Bathroom humor has its place.

“The only time I can ever recall a member of the opposite sex being in the bathroom is when I was at a Georgia football game,” former Gov. Roy Barnes told a group of college students this week. He didn’t need to explain that, at the time, Sanford Stadium was a near-desert when it came to female facilities.

“Five girls came in there and said, ‘Move over, boys. The lines are too long,’ an unscarred governor remembered. “Then one of them remarked, ‘Now, listen, y’all ain’t got nothing we ain’t already seen.’”

And then there are the bathroom stories that aren’t so funny.

Like the time, just last week, when hundreds of parents in Fannin County gathered to discuss — whether the local school board wanted to or not — the proper toilet destination for a single, individual child in their midst. Officially, the student went unnamed, but there is no such thing as real anonymity in a middle or high school, is there?

Ready or not, we are about to have a discussion about gender and bathrooms in public schools, about taboos that are inviolate and taboos that are not.

It’s fair to say that many of us, perhaps even most of us, were unfamiliar with the issue of the transgender until North Carolina passed its state law that, among many other things, restricts use of public toilets to those of one’s biologically certified gender. Schools included.

It is also fair to say that, with last week’s letter of “significant guidance” on how all local schools should treat transgender students, and its implied threat of lost federal funding, the White House nationalized a more or less regional fight. Which has caught parents, school administrators and politicians flat-footed.

And so here we go. It is primary season, and most Republicans have been eager take up this new banner against President Barack Obama. This week, more than two dozen state senators piled their signatures upon a manifesto penned by state Sen. William Ligon, R-Brunswick, and sent to Gov. Nathan Deal and Attorney General Sam Olens.

“This new federal policy is increasing the risk for injury to unsuspecting and innocent girls in our schools,” the letter stated. “Furthermore, as stated by the [American College of Pediatricians], ‘Conditioning children into believing a lifetime of chemical and surgical impersonation of the opposite sex is normal and healthful is child abuse.’”

The senators called on Deal and Olens to launch an immediate federal court challenge — and to guarantee that the state would pick up the check if any of Georgia’s 181 school systems are sued for their treatment of transgender students.

One senses in the responses from the governor and attorney general an attempt to blunt what could become a stampede. Neither spent any ink on the idea of indemnifying local school districts sued by transgender students. That would be 181 tails wagging a dog.

Both men strongly condemned what they called an attempt at federal overreach, but Deal said the White House letter doesn’t carry the force of law — implying that no immediate court action was necessary. He asked state School Superintendent Richard Woods to look into the topic, and formulate a state policy that local school systems could use for guidance.

Olens recognized the impact that the coming bathroom debate could have on some already challenged young people. “I am confident that Georgia’s parents, teachers, and local communities will take every measure necessary to ensure that no child is harassed or intimidated at school for any reason,” he began – before damning the Obama administration for its decision to address “a sensitive and complex issue with a sledgehammer.”

One reason not to rush into a lawsuit may be the fact that, while Congress hasn’t done much to define sex and gender rights beyond the 1964 Civil Rights Act, the federal courts have. In fact, the Georgia Legislature helped write one of the more important precedents.

In 2007, a male proofreader and editor of bills was fired when his bosses at the General Assembly learned he was transitioning to female. In the discrimination lawsuit that followed, the 11th Circuit Court of Appeals found for Vandy Beth Glenn.

“An individual cannot be punished because of his or her perceived gender-nonconformity,” one judge wrote.

That’s not an opinion that will wash with everyone.

Some conservative Christians, already angered by the governor’s veto of a “religious liberty” bill last month, came close to accusing Deal of timidity on Wednesday.

“While it is true that policy about transgender accommodations can certainly be handled by local schools, the governor should also encourage local school systems to defy the directive,” wrote seven religious conservative leaders, including the Georgia chapter of Ralph Reed’s Faith and Freedom Coalition. The governor has felt free to use his influence over other education matters, including “so-called ‘failing schools,’” the group pointed out. He should do so here, too, they argued.

The group also called for action from the General Assembly when it convenes in January. Some ideas are already being kicked around.

State Sen. Josh McKoon, R-Columbus, has suggested that lawmakers could make it easier for parents to sue the state if their child is molested or assaulted in a bathroom or locker room by someone claiming transgender status. McKoon maintains that heterosexual predators falsely posing as transgender would be the real threat. “There ought to be a complete waiver of any sovereign immunity defense the state would assert,” he said.

But again, caution might be in order.

I asked the Columbus lawmaker if his proposal might appear awkward. We would be creating an express lane for those wanting to sue in cases of assault by a transgender person, even if – as McKoon and others admit – those assaults are still hypothetical. None has yet been recorded.

And yet, we would be doing nothing special for the more traditional – and well-documented — victims of sexual abuse in schools. The kind created by the Dennis Hasterts of our world. The disparity would be glaring.

McKoon agreed that the point was worth thinking about, and his idea might need refining.

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About the Author

Jim Galloway
Jim Galloway
Jim Galloway is a three-decade veteran of The Atlanta Journal-Constitution who writes the Political Insider blog and column.