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New Jersey Employment and Civil Rights Trial Attorney Discusses Rachel Pepe Transgender School Case

Or . . . Are We Still Having This Conversation?"

In Middletown, New Jersey, thirteen year old Rachel Pepe - born Brian Pepe - is fighting on the last LGBT Civil Rights front where battle is still necessary.

I've mentioned in past blogs that the Civil Rights Movement is not one movement for one group, but rather, many small movements for many distinct minorities, each with their own past history of having been exposed to societal, political, social and religious bigotry and hatred.

The first front in the Civil Rights War opened in the 1960's for African Americans. The second front involved women. Each of those battles is still being fought, of course, but each battle has resulted in tremendous gains.

The "second" front, of course, also includes lots of "sub fronts" for other ethnic, racial and religious minorities. Those subsequent fronts, 2a, 2b, 2c, etc., (forgive me, that's how my mind works) continue to open up as the makeup of society shifts and as current events move certain discussions to the forefront. After 9/11, for example, bigotry dramatically increased against people from the Middle East and people who are incorrectly perceived to be from the Middle East, like Indians and Pakistanis. Even Hispanic people and people from the western hemisphere with a certain color to their skin were exposed to bigotry putatively directed at individuals from the Middle East.

The third front in the Civil Rights fight, however, has been for LGBT people (lesbian, gay, bi-sexual and transgender). Within that front, the war is of still-recent vintage. I remember in the early 90's that it suddenly became "OK" (but only "OK") to have openly gay characters on a sitcom (Will & Grace) who were just reasonably "normal" people. There were still stereotypes. One was Jack, the wild and promiscuous gay man, and the other was Will, the "wise beyond his years" gay man who is a good friend to women. Yet despite those stereotypes, that was a step across the threshold for the culture. Here we are, twenty-five years later, and the number of shows featuring gay characters, and the number of gay characters on those shows, happens to reflect accurately the percentage of individuals in the country presumed to be homosexual, whether they admit it or not. That fight isn't over, even though the strides made for equal marriage rights and anti-homophobic legislation has advanced the ball considerably.

Yet within the "third front," there are four letters. One of those letters is "T," for "transgender." This letter represents by far the least numerical constituency in the "LGBT" acronym and also, almost universally, the segment least understood (often by the members of the other letters in the same group as much as by society in general). It's not unfair or unreasonable to say that transgender people are the most vulnerable minority within a vulnerable minority. As hard as it is to "come out" as a gay or lesbian person, it's harder and scarier, transgender people assure me, to come out as a transgender person. Sometimes, even their gay or lesbian friends and acquaintances don't really understand what being a transgender person means.

The culture on transgender acceptance and awareness is still twenty-five years behind the "LG" part of the fight; the level of understanding for transgender people is still extraordinarily - shockingly and unacceptably - low.

Hate crimes against gay and lesbian people have continued to drop on a per capita basis over the last twenty-five years, but hate crimes against transgender people have not. Transgender people are often vulnerable at their jobs, in their personal relationships and with family. They come out later in life than do gay and lesbian people because it's harder to argue that you were born into the wrong physiology than it is to say you love the same sex. There are gay mammals in the animal word; there are no transgender ones.

Transgender people face rejection and prejudice in the most enlightened states and in the most obscene ways. My law firm is currently litigating cases where New Jersey Police Officers, authorized and trusted to uphold the law and to carry a badge and a gun, discriminated against a transgender woman simply because she was a transgender woman. Transgender people are still the objects of scorn, ridicule, hatred and violence.

Transgender kids in schools are especially vulnerable to this type of bigotry, because even if the school officials intend well, those officials have to contend with - and often knuckle under to - fear mongering parents who don't want their children going to gym class or to bathrooms with a transgender kid.

Rachel Pepe is fortunate that she has not only a supportive family, but that she realized what she was when young enough to do something about it. She led a life filled with stress, depression and panic attacks that has gotten infinitely better since Brian became Rachel.

Yet in a progressive and enlightened state which has passed a strong Civil Rights Law that specifically prohibits discrimination against transgender people, she has to fight a battle that should have become, especially in New Jersey, entirely unnecessary.

The Middletown School District recently informed Rachel's mother, Angela Peters, that because Rachel's birth certificate lists her name as her male birth name, the School would not identify Rachel as a female student, or refer to her as Rachel. In addition, despite the fact that Rachel should be allowed to use the girl's bathroom (just like any other girl), the school district has refused a request for Rachel to use the Nurse's bathroom located away from the regular restrooms.

The "bathroom" conundrum is perhaps the most frequently encountered and laughable (if it wasn't so tragic) situation transgender children face. Just imagine for a moment that Rachel was born Rachel but that she's a lesbian. Would the school suggest that a homosexual girl could not use the girl's bathroom because the "straight girls" would be worrying about what the homosexual girl was thinking? Of course not. If the school were to make such an announcement, it would be thrown off the state and into the Atlantic Ocean along with every administrator and teacher in it. At least that level of "traditional" homophobic bigotry is a thing of the past. Yet here's Rachel, who, for all intents and purposes is a straight female, not being allowed to use the girl's bathroom. Why? And more importantly, how can such a decision be defended?

I don't envy the school administrators having to deal with ignorant, stupid parents, but that is part of their job, and part of their job is also to teach the ignorant. Sometimes teaching the ignorant means teaching ignorant parents that they should shut up. My advice for the school administrators is to simply tell parents that their concerns have been heard, that the school is going to make the progressive and enlightened decision that New Jersey Law requires, and that the conversation is over. If those parents want to teach their children the tragic lesson that bigotry, homophobia and ignorance against transgender kids is "OK," they can pull those kids out of the school and pay for them to go to private school (where, presumably, the issue is going to someday going to come up also).

It's tragic and unacceptable that Rachel had to come to public attention this way, though every conversation of this type advances the ball on this last front in the Civil Rights fight (at least for the present).

As a Civil Rights Trial Lawyer, who represents LGBT people in New Jersey, I and everyone at my firm applaud Rachel's courage, and that of Angela Peters, her mother, who supports her daughter.

That said, I still can't believe we're still having this conversation.

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