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NC to Rescind Transgenders-in-Restrooms Law Wednesday
Operators to be Freed to Make Reasonable - or No - Accommodations
This comes after the Charlotte City Council rescinded a local anti-discrimination ordinance that had prompted passage of the HB2, and mandated that anatomical males must be given unfettered access to restrooms used for girls and women based solely on their unsubstantiated claim to feel like a female.
This would appear to return decisions as to restroom use by transgender people to individual operators, where they were generally decided until the recent governmental interventions, says public interest law professor John Banzhaf, noting that both pieces of legislation sought to impose an extreme one-side-fits-
But Banzhaf suggests that what accommodation is most appropriate in a school might depend, for example, on the ages of the children. Thus an arrangement for a first grade class may be very different from what works best at a high school with much old students undergoing puberty.
It might also depend on the size of the school, how much discipline is generally maintained, etc.
Moreover, without laws mandating one extreme accommodation or the other extreme, operators may determine that transgender students are entitled to some accommodation, but that it need only be a "reasonable accommodation"
For example, if a school had a sufficient number of all-gender restrooms, it might not have to permit students with a penis to use female restrooms, since the all-gender restrooms would be a reasonable accommodation for the small percentage of students who are transgender.
Banzhaf notes, for example, that a school does not have to provide wheelchair access to all classrooms to adequately protect the rights of students in wheelchairs if there are a sufficient number of wheelchair-accessible classrooms to accommodate the small percentage of students who need them.
Similarly, he argues, providing enough all-gender restrooms to satisfy the requirements of transgender students might adequately protect their rights without opening up female restrooms to traditional male students who claim to feel female only in order to obtain access for sexual purposes.
Although virtually every all-gender restroom is of the single-user type like those used on airplanes, Banzhaf's George Washington University is now testing a new concept of changing what used to be men's rooms into all-gender restrooms which can be used by several students at one time.
The outside doors are also lockable from the inside if privacy beyond that provided by the existing lockable toilet stall door is deemed necessary.
If in this way at least half of all restrooms are opened to transgender students, it should more than satisfy their needs - and therefore provide a reasonable accommodation - without also permitting them to enter restrooms reserved for females as Charlotte had provided, or forcing transgender students to use restrooms which they believe are not appropriate for their sexual identity as under HB2, argues Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
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