Anti-LGBTQ+ "Bathroom Bills"

BY STEVE NUZUM

The South Carolina General Assembly has shown several clear educational priorities about halfway through the current 2025-26 session.  

These priorities don’t include-- as many might have hoped or expected-- reversing the record-setting trends in teacher attrition and low graduations from state colleges of education, or protecting students from violence--including gun violence-- at school, or desegregating our schools, or addressing systemic inequities in school funding.

Instead, this sessions’ priorities are: tightening up the state’s existing unconstitutional voucher law, making it easier for parents to sue educators over perceived violations of “parental rights,” and tripling down on attacks against LGBTQ+ students and families. 

“Bathroom Bills” harm student privacy, rather than protecting it.

While current “parental rights” bills essentially seek to legislate LGBTQ+ families out of existence in the school building (by chilling any speech related to “gender”), anti-LGBTQ+ “bathroom bills” attempt to formally legislate away the very existence of transgender, gender-nonconforming, and nonbinary students, school employees, and even school visitors. 

South Carolina’s Senate Bill 199 and House Bill 4756, both euphemistically labeled “Student Privacy Acts,” do the opposite of what that label implies.  

Research does not support the claim that allowing students to use the restroom or changing rooms that align with their gender identities leads to violations of other students’ rights. For example, a recent study from UCLA’s Williams Institute found that, “There is no evidence that allowing transgender people access to bathrooms aligning with their gender identity jeopardizes safety and privacy.” 

Instead each bill creates its own very narrow (and medically unsound) definition of binary “Male” and “Female” “biological sexes”. (Among many problems with the definitions, the House bill contains conflicts within its very definition-- it defines “biological sex” both as the sex identified at birth and based on physical features of a person’s reproductive system. 

In a significant number of cases, the appearance of person’s exterior reproductive features at birth do not match their “biological sex” (as defined in the bill), so these definitions may be in conflict. And the bill makes no allowance for people who are intersex, or for any of the other real-life gray areas around “biological sex” and gender that have led to support from the majority of medical organizations for the idea that gender is at least partly socially-constructed, and not a kind of biological fact, and that gender-affirming care is medically necessary and supported by medical research. 

(To put it more practically, what, exactly, does the General Assembly want a student who was identified as male at birth, for example, but who is clearly not male at the time of attending school, to do when they need to use the restroom or get changed? Or, it might be fairer to ask, do they actually care about students, or about making an abstract point about “gender”?) 

Both the Senate and House versions would strip South Carolina’s transgender, nonbinary, and gender-nonconforming citizens-- particularly students-- of their privacy rights by requiring that schools police which restrooms and changing rooms they are allowed to use. 

The research on the harmful effects of passing school “bathroom bills” like these is also clear. 

For example, a study from the medical journal Pediatrics found that, “Youth whose restroom and locker room use was restricted were more likely to experience sexual assault compared with those without restrictions”. Forcing transgender students to use a bathroom that did not align with their identities was associated with increased mental health issues.

As I’ve written before, denying the rights of these subgroups of students is, in addition to being unethical and harmful, also illegal. 

While Governor McMaster opined early in the session that supporting LGBTQ+ students in schools (in this case through school curricula) is “goofy stuff,” a 2020 consent decree from a federal district court explicitly requires South Carolina’s Department of Education to ignore a part of the state’s sex education law which violates the Equal Protection Clause of the US Constitution’s Fourteenth Amendment.  Specifically, the law required that sex education ignore the existence of same-sex or other non-heterosexual relationships. 

And so, in addition to the real harm it does to LGBTQ+ people in South Carolina, this attack on vulnerable students also, once again, throws educators and school staff into the middle of a manufactured culture war.  Openly transgender people make up around 1% of the United States population, yet public officials have made them out to be a major driver in crimes and problems which cisgender people are vastly more likely to commit. 

The sad reality is that students in our schools do need greater privacy protections, and greater protections from sexual misconduct and sexual assault. 

Content warning: this part of this article contains references to sexual misconduct and violence against children.

In my experience, we are far behind this area. 

During my career, I worked at multiple schools where reports of harassment made by both students and adults, made by both students and adults, were downplayed, discounted, or even covered up. Alleged perpetrators were sometimes transferred to other schools, given a slap on the wrist, or not investigated at all. Investigating administrators and school resource officers sometimes discouraged victims from making complaints at all, even threatening that by making complaints they opened themselves up to discipline or criminal charges for filing “false complaints”. 

To my knowledge, in the only two documented cases of sexual assault in schools that involved a changing facility-- a boys’ locker room-- the perpetrators and the victims were all students who were assigned male at birth and identified as male (in other words, they were all “Male” under the language of the proposed bills).  

And in each case, the school did very little to address either the specific situations that contributed to these incidents, or to address the larger school culture problems.  

Many students at the same school where one incident took place shared that they didn’t see the point in reporting incidents of sexual misconduct because of the way previous allegations had been handled, including what they said was a dismissive attitude and even victim-blaming.

The point is that not only does the pretense of “protecting student privacy” by villainizing transgender, nonbinary, and gender-nonconforming students deeply harm those students, but it harms all students by taking our collective eyes off the ball when it comes to protecting students from real violence and mistreatment. 

It is obviously deeply uncomfortable, as an adult, to think about children being sexually abused, exploited, or mistreated. And yet, the problem is extremely widespread. 

According to RAINN, 63,000 children a year are the victims of sexual abuse.  And while the majority of this abuse occurs outside of the school building, the number of reported incidents at school is cause for alarm.  

We don’t protect our children by creating bogeymen, especially when those bogeymen are other children.  

Children and young adults are sometimes perpetrators, but the vast majority of perpetrators against children are adults who are close to children or their families. And while, again, the vast majority of these adults are family associates or family members outside of the school building, those adults committing sexual misconduct within the school building are statistically almost never transgender people. 

By pretending otherwise, we do our children, not to mention our LGBTQ+ educational staff, real harm.

As with most culture-war legislation impacting our schools, these bills probably aren’t the priority of most South Carolinians. 

It’s not clear why these bills are such a priority for South Carolina elected officials, other than that they are likely supported by powerful and well-funded national interests. 

Although I don’t know for sure who wrote S. 199 or H. 4756, it’s very likely that the anti-LGBTQ+, Arizona-based Alliance Defending Freedom (ADF) wrote our state’s current “parental rights” bill, which also contains provisions clearly designed to exclude LGBTQ+ students and families from an equal education. ADF has been connected to legislation targeting trans athletes, attempting to criminalize same-gender marriage, and a host of other anti-LGBTQ+ efforts.

During debates on a previously-passed South Carolina ban on gender-affirming care, ADF provided virtually the only support for South Carolina’s bill. 

Matt Sharp, senior legal council at Alliance Defending Freedom (which has been labeled a hate group by the Southern Poverty Law Center) provided the sole testimony, via video messenger, in favor of that bill during its first hearing (which took place on the first day of the legislative session last year), while 58 South Carolinians spoke in person against it. 

As many healthcare workers testified during that hearing, South Carolina’s disturbing rates of infant mortality, firearm mortality, and other grim health statistics had provided plenty of obvious priorities for the legislature, and yet here they were on the first day of session, watching the medical subcommittee target and spread misinformation about a group which makes up about 0.6% of the U.S. population, and which has already suffered disproportionately bad health outcomes, while doing nothing to address these pressing health issues. 

But in any case, South Carolina’s Senate and House bills appear to be receiving the fast-track treatment. Particularly if legislators are able to reconcile language between the two versions, a law could be on Governor McMaster’s desk to sign before the end of the session.  

For those of us who care about LGBTQ+ students, who care about protecting students from actual harm and abuse, or who are simply tired of the real business of schools being perpetually hijacked to make abstract culture war points in service of someone’s reelection campaign, now is the time to reach out to our state elected officials to urge them to oppose these bills, or any bills, which exclude portions of our state from being able to access basic services at school, including restrooms and changing facilities, in a way that aligns with who they are and with their specific academic and personal needs.