Mass. Gender Identity Policy: Public Schools Ordered to Allow Boys to Use Girls' Bathroom

The Massachusetts Department of Education has issued a directive to the state's public schools mandating that they allow boys to cheer on girls-only cheerleading squads, and allow boys to use girls' restrooms if the male student identifies as a female to comply with the state's anti-discrimination law.

In November 2011, the Massachusetts legislature passed a law, "An Act Relative to Gender Identity," that went into effect on July 1, 2012. This law adds "gender identity" to the state's non-discrimination code and defines gender identity as "a person's gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth."

The 11-page directive issued on Feb. 15 is titled, "Guidance for Massachusetts Public Schools, Creating a Safe and Supportive School Environment, Nondiscrimination on the Basis of Gender Identity," and requires school administrators, as well as teachers and staff at elementary and secondary education schools, to implement new gender identity policies and procedures in the classroom and for extra-curricular activities.

New guidelines include lengthy definitions for the terms: "gender expression," "gender identity," "gender nonconforming" and "transgender," and advises that transgender students be provided with alternative restroom, locker room, and changing facility – such as a unisex bathroom or the school nurse's restroom – if the student is uncomfortable using that of his/her gender identity.

The document also suggests that school administrators and teachers should "foster understanding of gender identity," for the students who are uncomfortable with male students having the right to use a girls-only bathroom or locker room.

"The School Commissioner's first duty is to protect all students, from kindergarten to grade 12, not endanger them," said Kris Mineau, president of Massachusetts Family Institute, which is working with pro-family legislators to pass "An Act Relative to Privacy and Safety in Public Accommodations" that would require people to use restrooms and locker room facilities that are consistent with their anatomical sex. "The overriding issue with this new policy is that opening girls' bathrooms to boys is an invasion of privacy and a threat to all students' safety."

Districts are also required to renovate school buildings to include an "appropriate number of gender-neutral restrooms commensurate with the size of the school, and at least one gender-neutral changing facility ...."

Likewise, all students must be allowed to participate in intramural and interscholastic athletic programs based on their gender identity, and not their sex at birth. This includes girls' cheerleading squads, boys' basketball teams, and all sports-related activities that are not co-ed.

"If a male student tells his teacher he feels like a girl on the inside, the school has to treat him in every way as if he actually is a girl," said Andrew Beckwith, attorney for the Massachusetts Family Institute. "School personnel may be forbidden from informing the parents of their child's gender decisions, and students can even decide to be one gender at home and another at school."

Other changes include reforming the gender-based dress code for National Honor Society ceremonies that require girls to wear dresses.

"[T]his requirement to ignore a basic truth of anatomy even extends to other students, as the policy states that referring to a transgendered student by their birth name or sex 'should not be tolerated and can be grounds for student discipline,'" added Beckwith.

Teachers are also required to facilitate "name and pronoun" changes with a student if they want to change their name to reflect their gender identity. Once a student has changed their name, teachers and other faculty members are required to keep the student's birth name in a private record, and all documentation pertaining to the student must reflect their new name.

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