VA GOP Bill Could Require Inspection of Children’s Genitals [UPDATED]

Virginia Delegate Mark Cole
Source: AP/Steve Helber

A state-level Virginia GOP politician (Del. Mark Cole) just proposed transphobic legislation dictating men, women and children must all use public restrooms correlating with their “correct anatomical sex.” Specifically, the legislation targets public schools where in order for the legislation to work, adults could be required to inspect children’s genitals before they use the bathroom.

HB 663 – otherwise known as “Use of restroom facilities; penalty” – defines anatomical sex as “the physical condition of being male or female, which is determined by a person’s anatomy.” Relating to schools, the bill would change current law by requiring:

Local school boards shall develop and implement policies that require every school restroom, locker room, or shower room that is designated for use by a specific gender to solely be used by individuals whose anatomical sex matches such gender designation. Such policies may also provide that a student may, upon request, be granted access, to the extent reasonable, to a single stall restroom or shower, a unisex bathroom, or controlled individual use of a restroom, locker room, or shower.

The legislation even goes so far as to offer punitive measures for those caught breaking the law (meaning someone would physically have to verify someone is in the bathroom that does not correspond to the current state of his/her physical genitals):

Any student who willfully and knowingly violates this section shall be liable for a civil penalty not to exceed $50. Civil penalties assessed under this section shall be paid into the Literary Fund. Any law-enforcement officer may issue a summons regarding a violation of this section.

This is what the conservative movement has devolved into: forcing children to allow adults to examine their genitals out of misplaced fear that transgender kids and adults might commit a hypothetical never-before-seen act of violence or sexual aggression (that would still be against the law with or without transgender protections).

UPDATE [January 13, 2016 @ 6:30pm ET]

Two important items to add:

(1) Clarification of the legislation and its enforcement mechanisms

Though we (and many other outlets) made reference to adults literally inspecting children’s genitals, the bill does not specifically call for it. In fact, the legislation offers absolutely no enforcement mechanism as to how complainants, teachers, or courts would determine someone’s  “correct anatomical sex.” We focused on the school portion asking exactly how schools would make the determination a complaint is valid (and not bullying or illegal discrimination). How does the complainant know the “correct anatomical sex” beforehand in order to actually make the complaint?

(2) Delegate Cole’s update

Del. Cole issued a CAPS-laden response to everyone reaching out to him via social media proclaiming his legislation actually protects the privacy of students. In each response he links to a comment on his official website that states:

Delegate Cole has filed legislation (House Bills 663 and 781) to require public agencies, including schools, to develop policies that require males to use facilities (restrooms, showers, and dressing rooms) that are designated for males and females to use facilities designated for females. If a facility is not designated, such as unisex bathrooms, then it would not apply to them.

It is common sense legislation designed to protect the privacy of children and adults, and was requested by a group of parents in my district who are concerned about a male student who wanted to use the girls facilities. Schools have been sued for not allowing males to use female restrooms and this legislation is intended to adopt a clear policy and to pre-empt further suits.

Contrary to what has been said about the legislation, it does NOT require genital checks. That is a lie started by those who want to make all facilities, including school restrooms, dressing rooms, and showers, “gender neutral.” The legislation would be enforced on a complaint basis. If needed, gender could be verified by looking up student registration information or a birth certificate.

Following up on his statement I inquired how his legislation would be enforceable, to which he responded:

That led to the obvious follow-up question: “How do the courts verify the anatomy of the defendant to execute the fine?”

Though he has not responded, a rational observer could extrapolate his response based on the aforementioned statement. What that statement does not cover is the legal status transgender individuals enjoy as they transition. In particular, the Obama administration announced that transgender students are covered under Title IX (meaning states and localities may not discriminate on the basis of “gender identity or failure to conform to stereotypical notions of masculinity or femininity”).

While Cole’s response will probably reference a birth certificate or student registration, neither legally mean anything if a student identifies as transgender and has medical documentation. Furthermore, many families with transgender children actively seek out such documentation to provide schools to head those sorts of arguments off at the pass. Prior to coverage under Title IX, even that often failed to protect students seeking to use the bathroom correlating with their gender identity.

More succinctly, in order to legally enforce Cole’s legislation, someone will (at some point) literally have to examine the genitals of the accused lawbreaker even if that person is a child whose parents provide transgender medical documentation.

Tim Peacock is the Managing Editor and founder of Peacock Panache and has worked as a civil rights advocate for over twenty years. During that time he’s worn several hats including leading on campus LGBT advocacy in the University of Missouri campus system, interning with the Colorado Civil Rights Division, and volunteering at advocacy organizations. You can learn more about him at his personal website.


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