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New Jersey Civil and School Rights Trial Lawyer Discusses Ground-Breaking New Jersey Public School Guidelines for Transgender, Gender Questioning and Gender-Fluid Students

For years, the New Jersey Law Against Discrimination (LAD) has held that it's illegal to discriminate against an individual, including on the basis of gender, gender identity or gender expression, in any place of "public accommodation."

The phrase "gender identity or expression" certainly includes, both by logic and by Court decision, concepts such as "gender fluidity," "gender questioning" and "gender non-conforming." These phrases evolved (at least in terms of the cultural vernacular) pretty recently; after the amendments to the LAD which added gender identity or expression. 

As well, the phrase "place of public accommodation" as utilized in the law has included NJ public schools since the 2007 decision in L.W. v. Toms River School District.

Yet even with these enlightened policies as embodied by New Jersey Law - a state which leads the way in recognizing and protecting civil rights, there still existed a pretty big "hole" in how these gender identity protections were to be practically administered (and administrated) in public school settings.

Most New Jersyians have a "live and let live" view, notwithstanding cultural or religious training, when it comes to non-traditional gender. That view slowly continues to occupy more and more of the "quiet middle" of public opinion. Yet there are those who speak loudly and often in protection of gender identity rights, such as the attorneys who dedicate themselves to the protection of those rights at this law firm. Likewise, of course, there are those who are frequently vocal about their disapproval of the idea that gender can be questioned or changed at all (and by implication, that it ought not, or cannot, be "questioned"), and that "permitting" such in a public school setting somehow "undermines" some sort of "moral fabric" (at least as they see it).

So it was about time that New Jersey developed a series of guidelines to make sure that there's less "discretion" on the part of school officials than there was before, more clear guidelines about what to do, and most importantly, that these issues - and how to handle them - are universal throughout the State of New Jersey. Every public school district, regardless of what the "prevailing culture" might be in that district, must obey.

On Thursday, September 27, 2018, the New Jersey Department of Education issued guidance affirming the rights of transgender, non-binary and gender non-conforming students in public schools throughout the state. These new guidance's affirm and protect a student's rights in, among other ways, accessing restrooms and other gender-segregated facilities that match their gender identity, not their "assigned" (biological) gender identity from birth.

The issue of "bathrooms" has not only been the subject of previous blog entries by me (in which I unapologetically rant against the stupidity and ignorance of those who think it really matters that humans eliminating waste next to you were born in a different gender than that in which they present), but it's really been a problem for otherwise well-intentioned parents and educators. There's something about "bathroom use" that really triggers peoples' fear instinct. People that don't really have an avowed "problem" with gender, transgender or gender fluidity (members of that non-vocal "middle" that don't seem to have much of a horse in the race either way) suddenly develop a real issue when it comes to going to the bathroom.

Well, the ship of how each district individually handles "bathroom policy" has now sailed, and everyone has to get on board.

In addition, the guidelines also state that:

  • Administrators, teachers and staff must use the students' chosen name and appropriate pronouns in all verbal, written and electronic communications;
  • Schools must take a student-centered approach (wherein gender identity determinations rest with the student);
  • Parental consent is not required to affirm a student's identity;
  • A student must be allowed to participate in intermural and interscholastic athletics in a manner consistent with their gender identity.

This last one was a bug-a-boo, again, with parents who don't have to contend with gender fluidity or gender questioning in their children. Some parents that think their children are future Olympians get really vexed about the idea (especially when they're worried about their daughter being "unfairly" competed with by a male-to-female trans student) that a "boy" (their argument fails if they acknowledge gender identity, so they always use assigned gender when making this argument) can compete with their girl, and it's "unfair." Their argument, of course, is that the "boy" still has, notwithstanding "gender identity," all of the natural biological "advantages" that a boy has over a girl at any given age.

Honestly, they're not completely wrong. Even before they hit puberty, male children have more muscle mass than do female children, on average. And yes, in ways that are almost impossible to measure significantly, a child within an assigned gender of male, but with a gender identity of female might have some sort of "advantage," in empirical measures.

Well, maybe so. But I don't think it's going to mean that our future female Olympian doesn't have an outstanding athletic career. The number of students that this actually affects in any measurable way will be a tiny fraction of 1%, but the number of transgender students who lead healthy lives in their affirmed gender, and who become healthy, happy and productive tax-paying citizens (instead of people who relate to the trauma of not being affirmed in their actual identity and take by way of benefits and disability), is compensation enough for the culture at large, and that's who we have to think about.

I wouldn't say that it's "about time," because that's really not fair to New Jersey. So few states even have protections for gender fluidity, gender identity or expression. New Jersey has been at the point of the spear in developing protection, and, once again, it's at the point of the spear as pertains to vulnerable non-traditional gender children in public schools. It doesn't affect any private or parochial schools, but parents always have a choice as to where their child attends. If parents want to make the choice of putting their gender-questioning child in a private setting, they've been warned that those private settings don't have to validate their child.

It's a dark time in the rest of the country. In most states, benighted and ignorant policies that laud hatred and abuse of minorities seem to appeal to a disturbingly large segment of the population. In those states, trans-children have two choices: shut up; or deal with the failure to protect them from abuse, harassment and denial of their rights (somehow, usually self-destructively).

But they really have a third choice: come to New Jersey! Graduate here. Be a success here. Get a job and pay taxes here. Start a family here. Make us an even greater state then we already are.

Congratulations to the New Jersey Assembly and Senate, to the organizations that fought so hard so that these guidelines would emerge, and to our present Governor, Phil Murphy, because under his predecessor, these policies would never have emerged. 

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