By choosing not to support a nondiscrimination bill based on its protections for transgender Americans, U.S. Sen. Joe Manchin, D-W.Va., is withholding support of protections for some of the people most at risk of suicide attempts, violent attacks and other problems related to discrimination, according to surveys.
Manchin is particularly concerned about a provision of the bill that would allow transgender people to use the restroom of their choice, according to a spokesman. But professional organizations representing health professionals and educators already recommend allowing transgender students to use the restroom of their choice.
Manchin sent out a statement last week explaining why he is the sole Democrat in the U.S. Senate not sponsoring the Equality Act, which would extend protections in housing, employment and public accommodations to millions of lesbian, gay, bisexual and transgender Americans. He said that while he supports "equality for all people" and does not "tolerate discrimination of any kind," he could not support the bill based on its protections for transgender people.
"After speaking with local education officials in West Virginia, I am not convinced that the Equality Act as written provides sufficient guidance to the local officials who will be responsible for implementing it, particularly with respect to students transitioning between genders in public schools," he said. "I will continue working with the sponsors of the bill to build broad bipartisan support and find a viable path forward for these critical protections so that I can vote in support of this bill."
The National Education Association, American Federation of Teachers, American School Counselor Association, National Association of Elementary School Principals, National Association of School Psychologists, National Association of Secondary School Principals, American Psychological Association, American Medical Association and American Psychiatric Association are among those that already recommend transgender people be permitted to use the restroom that corresponds with their gender identity.
Manchin's cousin Mark Manchin is superintendent in Harrison County, where the ACLU has said a school principal bullied a transgender boy attempting to use the boys' restroom.
Asked what transgender people and health professionals Manchin had also spoken to, Manchin's spokesman, Jonathan Kott, said Manchin said he keeps his conversations private. Kott confirmed that Manchin's specific concern is about restroom access for transgender people and sufficient guidance in that area.
Kott declined to comment on the high rate of discrimination and hardship that transgender people experience.
Senate Bill 788, sponsored by Sen. Jeff Merkley, D-Ore., has 44 Democratic sponsors, two Independent sponsors, and one Republican sponsor, Sen. Susan Collins, R-Maine. U.S. Sen. Shelley Moore Capito, R-W.Va., is not a sponsor and has declined to support similar bills in years past.
The bill adds LGBT protections to the Civil Rights Act of 1964, which ended segregation in public places and prohibited employment discrimination on the basis of race, color, religion, sex or national origin, as well as the Fair Housing Act of 1968, which prohibited discrimination concerning the sale, rental and financing of housing based on race, religion, national origin or sex.
Beckley and Lewisburg are among a dozen cities in West Virginia that have passed similar city ordinances. The state Legislature has not passed statewide legal protections for the LGBT community. The Williams Institute at UCLA School of Law, a public policy research institute focused on sexual orientation and gender identities issues, has estimated there are 48,000 LGBT adults in West Virginia.
In recent years, some social conservatives have opposed similar bills, pointing to discrimination prohibition in areas of "public accommodation," which includes bathrooms, and because the bills include protections for transgender people.
They argue that the sex assigned at birth is always accurate. They also argue that if transgender people are permitted to use the restrooms they choose – meaning the restrooms that match their gender identity, not the sex assigned at birth – men could pretend to be women and assault women in women's restrooms.
"They're born that way"
"For decades previously, transgender individuals were looked at as being ill and having something extremely wrong with them," said Dr. Coy Flowers, a Lewisburg physician. "We know much better today."
Flowers, who is also the president of the West Virginia State Medical Association and practices obstetrics and gynecology, explained that gender identity is "someone's internal sense of being male or female,” which is not necessarily in line with the sex listed on their birth certificate.
"It's their own chemical and organic makeup – that they're born that way," he said. "That's what we're finding out in study after study after study.
"Usually what I have found is that those individuals, when you talk to them and interview them and learn about them, that they are more scared that they are going to offend someone or be in a situation that is dangerous," he said, "and it's just hard for me as a physician after speaking to so many transgender individuals to fathom or to wrap my head around these conversations where certain individuals want to make transgender males and females out to be something more malicious and nefarious than the kind, loving people that they are."
An estimated 41 percent of transgender people report attempting suicide compared to 1.6 percent of the general population, with rates rising for those who lost a job due to bias (55 percent), those who were harassed/bullied in school (51 percent), or were the victim of physical assault (61 percent) or sexual assault (64 percent), according to the National Transgender Discrimination Survey.
And in January, the federal Centers for Disease Control and Prevention released a survey of transgender and other high school students in 10 states as well as nine urban districts and found that about 53 percent of transgender students had felt sad or hopeless and 35 percent had attempted suicide, compared to 21 percent of other students who felt sad or hopeless and 5.5 percent who had attempted suicide.
The survey also found that 24 percent of transgender students had been threatened or injured with a weapon, compared to 6 percent of other students, and 35 percent had been bullied at school, compared to 15 percent of other students. They were also much more likely to use drugs or alcohol.
Flowers noted that Manchin's words are likely being heard "in a very strong and personal way" for transgender teenagers in West Virginia.
"If you look at the UCLA Williams Institute statistics, which are the most comprehensive about the LGBT demographics in the country," he added, referencing another study, "it shows that one county in the entire country has the highest percentage per capita of transgender youth in the country, and that's Pocahontas County, West Virginia.
"Today is not the time for Senator Manchin or Senator Capito or any other of our elected officials to play politics with the health of our youth, particularly the transgender youth who are most vulnerable in this state," he said.
Shelia Robinett, a clinical, doctoral-level psychologist who also runs a side business advising health care providers on LGBT issues in West Virginia, said that people, including transgender people, generally have a sense of their gender identity – whether they are male or female – between the ages of 2 and 5, and that identity is extremely unlikely to change.
"You can't just go and think real hard in a room and hold your breath or do some sort of ritual to try to make yourself gender dysphoric,” she said, using the clinical word for having a gender identity that doesn’t match up with the sex assigned at birth. “That’s something that’s not possible to change.”
Robinett, who is chair of the diversity committee for the West Virginia Psychological Association, said that when transgender people are supported, including permitted to use the appropriate bathrooms, use a chosen name, dress how they want, and have access to hormone therapy, they often lead healthy, happy lives. She said they are at higher risk for mental health problems, including self-harm, suicidal thoughts, substance abuse, and body image issues, not because they are transgender, but because of the discrimination, such as bullying, harassment, and family rejection, they experience.
“Politics and health care are two separate worlds,” she said. “The law and insurance will still have a lot of things and procedures related to transitioning listed as cosmetic in nature. Every major health care organization disagrees with that, and we do believe it is medically necessary. We will continue advocating for that, and we’re not going to sit back and remain silent whenever politicians vote in direct contradiction of that.”
Alex Schmider, a trans rights activist who works for the national LGBT rights organization GLAAD, noted that while there is currently an inordinate amount of focus on bathrooms, transgender people have existed through all of human history, and in all areas of life, from businesses to homes to workplaces. His work has focused on media representation of transgender people.
"All of a sudden people are suddenly learning about transgender people," he said. "It's raising a lot of questions and interest and curiosity in what it means to be transgender but we've seen that when people get to know us as people and learn about us they come to find and know that we are just people living authentic and true lives and contributing in society."
He added that "nothing happens" when transgender people are permitted to use the bathrooms they choose.
"When a transgender student or someone who's gender nonconforming is told to use a bathroom that is not the one that aligns with their gender identity, it singles them out and makes them feel different when they know who they are, and they are who they say they are," he said.
Schmider suggested Manchin reach out to local trans students, who've read that one of their senators won't support an LGBT protection bill because of its protections for them.
"I'm sure some of these people would just like to sit down and talk with him and tell them who they are and what they're trying to do in school, which is probably trying to get an education, which is what students are there to do."
Experts on LGBT issues in public education disagreed that schools don't have "sufficient guidance" when it comes to restroom access for transgender students.
Chris Mayo, director of the WVU LGBTQ+ Center, who has written three books on LGBT issues and public schools, noted that West Virginia is in the Fourth Circuit. In that circuit, a Virginia judge ruled in 2018 that school officials violated the rights of a transgender boy, Gavin Grimm, when they prevented him from using the boys' restroom. She said that a Maryland court made a similar decision, and that in 2018, in Kenosha, Wis., a school district agreed to pay $800,000 in a settlement with a transgender boy who was prevented from using the boys' restroom.
She said she trained 200 people in the Harrison County school system, where Mark Manchin, Sen. Manchin's cousin, is superintendent. The American Civil Liberties Union of West Virginia has said an assistant principal, Lee Livengood, bullied a transgender boy using the boy's restroom, challenging him to use the urinal if he was a boy.
In fact, Manchin was in one of the trainings, she said.
"Having trained this district that has been the focal point for problems, I think we've got very caring educators there who just want to know what the best practices are," she said. "Now do we have other people either in the district or in the state who don't want that? Yeah, we do. Change is hard and people can be a little bit behind on medical information. They can be behind on civil rights. They can be behind on school law. That doesn't mean that changes haven't happened in all those areas and they may need to be convinced of why we're doing what we're doing, but I think all those changes have already happened, so this is resistance."
The Obama administration also attempted to enact guidance for schools in this area, through a "Dear Colleague" letter to schools, but a federal judge prevented the guidance from taking effect through a national injunction, and then the Trump administration immediately rescinded the guidance.
But Eliza Byard, executive director of GLSEN, which focuses on LGBT youth and education, agreed that schools already have sufficient guidance from health professionals.
She and Mayo agreed that the best practice for schools is to allow transgender students to use the restrooms they choose, with separate accommodations for any students who feel uncomfortable.
"I think one of the things about educators and school communities is they often do a beautiful job of accommodating the rights and comforts of everyone in their building and the needs of every student that walks through those doors and many of these problems begin when the work of schools becomes unnecessarily politicized from without, and I hope that all public figures will think long and hard about saying things about at-risk students that contributes to their pain and their victimization."
That said, not all schools are following those best practices.
According to GLSEN's 2017 National School Climate Survey, almost three in four transgender students in West Virginia were prevented from using the restroom that aligned with their gender identity, and fewer than one in five LGBT students reported their school administration was somewhat or very supportive of LGBT students.
"When public officials take aim at the most vulnerable of our youth, those young people suffer," Byard said. "That is true of racism. That is true of anti-immigrant sentiment. It is very true of anti-trans and anti-LGBT sentiment as well. These young people are not a threat to anyone. They are young people who deserve the same shot at getting a good education as anybody else in our schools and it is simply unfair, inappropriate and dangerous to make them a political football in this moment."
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