Kentucky lawmakers ponder where transgender students should use the bathroom

FRANKFORT — The question of where Henry Brousseau should use the bathroom vexed state lawmakers Thursday.

Henry, 16, told the Senate Education Committee that he is a transgender student. He has identified himself as a male for the past three years but has at times been forced to use girls' bathrooms.

Henry, a junior at Louisville Collegiate School, said it wasn't easy for him to talk in front of a legislative committee about where he should use the bathroom. All he wants, Henry said, is to be treated "like a normal kid."

He urged members of the committee to vote against a bill that would require transgender students to use the bathroom that matches their biological sex or to seek special accommodations, such as a unisex bathroom.

"The message is clear with this bill: We don't belong," Henry said during his testimony.

The panel voted 6-3, with one member passing, for Senate Bill 76, but it failed because it needed seven votes to get out of committee. Committee chairman Mike Wilson, R-Bowling Green, said after the meeting that the proposal, which is backed by the Family Foundation of Kentucky, might come up again for consideration.

"I'm extremely excited it failed," Henry said after the vote. "I hope that's the end of it."

Several of the six Republican legislators who voted for the bill told Henry that he was courageous in his testimony. Most of the lawmakers favoring the bill said discussion on the proposal needs to continue.

Sen. Danny Carroll, R-Paducah, told Henry that he didn't hate him. Sen. Alice Forgy Kerr, R-Lexington, said to Henry, "I love you, man."

Two Democratic senators — Reginald Thomas of Lexington and Gerald Neal of Louisville — and Republican Sen. Julie Raque Adams of Louisville voted against the bill. Sen. Johnny Ray Turner, D-Prestonsburg, didn't vote.

The bill, sponsored by state Sen. C.B. Embry Jr., R-Morgantown, initially would have allowed students to sue a school for $2,500 if they encountered a person of the opposite biological sex in a bathroom or locker room and a staff member had allowed it or had failed to prohibit it.

Embry presented a substitute bill to the committee that deleted that provision and struck language that would make the legislation take effect immediately upon becoming law.

Embry called his bill the "Kentucky Student Privacy Act." He said it was needed to protect the privacy of all students. The senator also claimed that the bill would eliminate "a great deal of bullying."

Sens. Neal and Thomas took issue with that claim, contending that the bill would lead to more bullying because transgender students would need special accommodations.

Neal said the issue should be left to site-based school councils and local school boards. "We are beginning to micromanage," he said.

Martin Cothran, with the Family Foundation, said public schools recently have become "a battleground for gender politics."

Kent Ostrander, also with the Family Foundation, said he was concerned about students who are harassed, but the privacy rights of all students should be protected.

That moved Neal to ask Ostrander if he also supported a woman's right to privacy when choosing an abortion. Ostrander immediately replied no.

Chris Hartman, director of the Kentucky Fairness Campaign, said the bill doesn't pass legal muster.

He said it violates federal laws governing equal treatment of male and female students. Last year, the U.S. Department of Education's Office for Civil Rights extended federal civil rights protections to transgender students under its Title IX programs but didn't specifically address the use of school bathrooms.

The bill stems from a controversy last year at Louisville's Atherton High School, where a transgender student who was born male identified as a female and wanted to use the girls' bathrooms and locker rooms.

Atherton principal Thomas Aberli told the legislative committee Thursday that he was ignorant about the issue and initially contacted the school system's general counsel. He said he has learned a lot since then and thinks that "this is an issue of regarding people where they are. It's a civil rights issue."

After much discussion and deliberation, Aberli said, the school adopted a policy of letting students use bathrooms based on their gender identity. The decision was backed by the school's site-based council and a Jefferson County Public Schools appeals committee.

He said Embry's bill would lead to more bullying.

At his school, Henry said, no other student minds that he uses male bathrooms.

"I've identified myself for three years now as a male and have not been bullied about it," he said.

Henry said he doesn't consider Embry "a bad person," and credited the lawmaker for initiating the discussion.

Sitting by the student's side was his mother, Karen Berg, who is a doctor.

"Henry, in his heart and soul, was born a boy," she said, calling him "my beautiful child."

This story was originally published February 19, 2015 at 3:24 PM with the headline "Kentucky lawmakers ponder where transgender students should use the bathroom."