By Erin Delmore
Correspondent
“We’re not trying to be too pushy here, but like, this is illegal,” said Rubin Smyers.
That’s what transgender teen Rubin Smyers told his board of ed after his guidance counselor said to use the girl’s dressing room before an off-campus concert and to use only unisex facilities at school. Rubin is a biological female. He identifies as male.
“It sort of seems like, because they were so cool with things up until that point, almost like they were saying, ‘Well, we’ll let you pretend to be a boy as long as you want, but when it comes down to it, we’re just not going to accept it,'” he said.
“Students are in a position where depending on which school they go to, they may get unequal treatment. We work with students all over the state who are in districts that have a policy and in districts that do not have a policy. And often in the district without a policy, students are being told things that are actually against the law,” said Garden State Equality Director of Programs Aaron Potenza.
The Fourth Circuit Court of Appeals — which covers the area south of New Jersey — ruled a students’ gender identity is covered by the Constitution’s Equal Protection Clause and by Title IX. The U.S. Department of Education made that clear two years ago.
But what exactly school districts need to do to be in compliance with the law? That’s up to the state. And New Jersey has no statewide guidance. Around half of the districts have adopted some version of a policy, or are in the process. The rest are working with a piecemeal — and often inconsistent — interpretation of the law.
“We’re talking about more than just restrooms. We’re talking about locker room facilities, we’re talking about physical education classes, we’re talking about pronouns and nouns that children are called in public schools, we’re talking about intramural programs and high school athletic programs,” said Philip Nicastro, attorney and vice president at Strauss Esmay Associates.
In Pascack Valley, transgender students are allowed to use the restrooms and locker rooms that correspond with their preferred gender identity. In Toms River, a similar policy was sidelined after a public petition gathered 440 signatures.
“It says that every person is created in the image of God and should be treated with love and respect and dignity, however this proposed policy could violate the privacy and security of certain students by a biological male being able to enter changing spaces and locker rooms of biological females,” said Shawn Hyland, president of Move the Earth.
A policy up for public comment this month in Highland Park allows transgender students to use the bathrooms and locker rooms of their choice and to declare which pronoun teachers must use to identify them. It would also grant access to single-sex school organizations, like sports teams.
“We actually allow the student to be in charge of their decision of who they are,” said Highland Park Board of Education President Darcie Cimarusti.
There’s no national data on the number of transgender students — or adults — in the U.S. That group’s become more visible over the past decade and especially the past year.
“I know that in terms of society, I’m sort of like a ‘new thing’, so I understand that there are a lot of kinks in the system that need to be worked out,” said Smyers.
Experts say it’ll take a vote by the legislature to provide consistent direction within the state. Until then, room for debate remains.