Kentucky bill would let students sue over transgender bathroom use

Similar legislation has failed twice before. Supporters say privacy is at issue, but critics say that's “not based in reality."
By Gwen Aviles

A bill has resurfaced in Kentucky seeking to allow students to sue their school if it allows transgender peers to use school bathrooms that correspond with their gender identity, instead of their sex assigned at birth, despite the bill’s previous failures in the state Legislature.

Republican state Rep. David Hale revived the Kentucky Student Privacy Act last Thursday. The bill would require that K-12 public school facilities, like restrooms and locker rooms, separate students “based on their biological sex.”

Kentucky State Representative David Hale (R).Kentucky State Legislature

“School personnel have a duty to protect the dignity, health, welfare and privacy rights of students in their care,” the bill states, “Children and young adults have natural and normal concerns about privacy while in various states of undress, and most wish for members of the opposite biological sex not to be present in those circumstances.”

The bill goes on to say that allowing students of “different biological sex” to use the same restrooms and locker rooms could cause “potential embarrassment, shame and psychological injury to students.”

And should a student see “a person of the opposite biological sex” in a sex-segregated facility, the student could have “a private cause of action against the school,” such as a lawsuit.

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The proposed legislation also states that transgender students whose parents provide written consent to school officials will be “provided with the best available accommodations.” Those accommodations may include single-stall restrooms, gender-neutral bathrooms or “controlled use of faculty bathrooms,” according to the bill.

Chris Harman, executive director of the Fairness Campaign, a Kentucky-based LGBTQ advocacy organization, called the bill “dangerous, disgusting and deadly.”

“It’s an election year, so this bill has Hale pandering to the lowest of his base,” Harman told NBC News. “This bill should in no way be a priority for the Kentucky Legislature.”

Hale, who did not respond to requests for comment, unsuccessfully introduced similar legislation in 2015 and 2018.

While the stated goal of the Kentucky Student Privacy Act is to protect minors from being viewed by “members of the opposite sex in various states of undress,” LGBTQ advocates say that the bill puts LGBTQ youth, particularly those who are transgender, at greater risk of sexual assault.

When transgender youth are denied access to school facilities that match their gender identity, the risk of sexual assault increases 26 percent for trans boys, 42 percent for nonbinary students assigned female at birth, and nearly 150 percent for trans girls, according to a recent study from the Harvard T. H. Chan School of Public Health.

“This kind of law is meant to scare people, but it’s not based in reality,” Keith Elston, legal director of the Kentucky Youth Law Project, told NBC News. “What it does is lead to worse health outcomes for trans youth.”

Elston said when transgender youth are denied the right to use facilities that correspond with their gender identity, they not only face higher risk of sexual assault, but higher risk of suicidal thoughts. He also noted that some students may avoid using the restroom altogether, which can lead to urinary tract infections.

Were the bill to pass, Harman said it would mark a “drastic step backwards, since most Kentucky schools have found accommodations that work without jeopardizing the health of trans students."

“The trend is moving in the opposite direction,” Harman said, ”but the Kentucky Student Privacy Act paints a target on trans kids’ back and sends all the wrong messages.”

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