Mary Katherine Kington, KLJ Staff Editor
In January, state senator C.B. Embry, Jr. (R-Morgantown) introduced a bill in the Kentucky legislature that could dictate which restroom transgender students must use while at school. Senate Bill 76, also known as the Kentucky Student Privacy Act, would require “students born male to use only those facilities designated to be used by males and students born female to use only those facilities designated to be used by females.” The school facilities listed include restrooms, locker rooms, and shower rooms that are accessible to multiple students.
The language of Embry’s bill requires transgender students to follow certain steps before they receive restroom “accommodations.” First, the student must assert to school officials that his or her gender is different from his or her biological sex, and then the student must provide written consent from a parent or guardian before the “best available” restroom accommodation is available. According to the bill, this “best available accommodation” will never include allowing the transgender student to use restrooms used by students of the opposite biological sex. Instead, transgender students must use single-stall, unisex, or faculty restrooms.
Interestingly, the bill goes a step further by creating a cause of action against the school for students who encounter a person of the opposite biological sex in their restroom. If the student of the opposite sex was either given permission by school personnel, or school personnel failed to take reasonable steps to prevent the encounter, the offending school must pay the student $2,500 for each instance, plus attorney’s fees and possible damages for emotional, physical, and psychological harm.
The Kentucky bill was crafted in response to a policy change that occurred last summer at Louisville’s Atherton High School that added gender identity as a protected classification in the school’s anti-discrimination policy. Atherton’s policy arose on the heels of new guidelines issued last spring by the Department of Education’s Office for Civil Rights that extended federal Title IX protection to transgender students. While these guidelines do not carry the weight of the law, numerous opponents of Senate Bill 76 point to the bills as an example of impermissible discrimination under the DOE’s new guidelines, and thus out of sync with modern trend on the issue.
Opponents argue that Embry’s bill inappropriately focuses on preventing uncomfortable situations for non-transgender students while fails to acknowledge the stigma and harassment transgender students could suffer from the bill’s private restroom mandate. Some students, parents, and community members may be uncomfortable with a policy that allows transgender students to use the same restrooms as non-transgender students. However, if a transgender student were to receive an accommodation under the bill, the student would be isolated to specific restrooms in the building away from other students. They argue that this result will likely further the discrimination and bullying that transgender students face in schools across the state every day.
Most state legislatures across the country have not addressed the issue, leaving transgender-friendly restroom policy decisions to local school districts or individual schools. Kentucky’s bill does, however, directly contradict legislation adopted in California in 2013. California adopted a state law that allows transgender students to choose which restroom to use and which sports team to join based on gender identity, rather than biological gender. Massachusetts and Connecticut have similar state-wide policies. It’s clear that the conversation about transgender rights – in schools and more broadly – is just beginning in our state and across the country. Kentucky’s bill was introduced to the senate in January and has been hotly debated in the media during the weeks following. Lack of support from lawmakers makes it unlikely that the Kentucky Student Privacy Act will gain enough traction to pass through the senate, but lawmakers and school leaders should continue the dialogue and work to reach a solution for Kentucky’s students. Whether restroom policy decisions are made on a state-wide or school-by-school basis, transgender students should be afforded the same basic civil rights as their peers, especially in an environment as critical to development as our school system.
 University of Kentucky College of Law, J.D. Candidate 2016
 S.B. 76, 2015 Gen. Assemb., Reg. Sess., (Ky. 2015).
 S.B. 76, 2015 Gen. Assemb., Reg. Sess., (Ky. 2015).
 Michael McKay, Atherton One Step Closer To Protecting Transgender Students, The Courier-Journal, June 4, 2014, http://www.courier-journal.com/story/news/education/2014/06/03/atherton-discuss-transgender-bathroom-policy/9913685/; Steven Nelson, Bill: Catch Trans Student in Wrong Bathroom, Win $2,500, Jan. 16, 2015, US News, http://www.usnews.com/news/articles/2015/01/16/kentucky-bill-catch-transgender-student-in-wrong-bathroom-win-2-500.
 Emma Margolin, Transgender Students Protected Under Title IX, DOE Says, MSNBC, Apr. 13, 2014, http://www.msnbc.com/msnbc/transgender-students-protected-under-title-ix.
 See generally Amanda Fallin & Keisa Bennett, Op-Ed, Ky. Bill to Monitoring Restrooms Puts Transgender Students at Risk, Kentucky.com, Jan. 29, 2015, http://www.kentucky.com/welcome_page/?shf=/2015/01/29/3666567_ky-bill-to-monitoring-restrooms.html.
 Chris Kenning, Ky Bill Targets Transgender School-Bathroom Use, USA Today, Jan. 20, 2015, http://www.courier-journal.com/story/news/local/2015/01/19/ky-bill-targets-transgender-school-bathrooms/22005313/.
 Cal. Educ. Code § 221.5 (2013); Calif. Law Lets Schoolkids Choose Restroom, Sports Teams Based on Their Gender IDs, The Associated Press, July 3, 2013, http://www.nydailynews.com/news/national/new-calif-law-win-transgender-students-article-1.1389901. A bill similar to Embry’s failed to pass the Maine Legislature in 2011. See H.P. 781, An Act to Amend the Application of the Main Human Rights Act Regarding Public Accommodations, 121st Main Leg., Reg. Sess., (Ma. 2011).
 H.R. 3810, 187th Gen. Ct. (Mass. 2011).
 H.B. 6599, 2011 Gen. Assemb., Pub. Act No. 11-55 (Conn. 2011).
 S.B. 76, 2015 Gen. Assemb., Reg. Sess., (Ky. 2015); E.g. Chris Kenning, Ky Bill Targets Transgender School-Bathroom Use, USAToday, Jan. 20, 2015, http://www.courier-journal.com/story/news/local/2015/01/19/ky-bill-targets-transgender-school-bathrooms/22005313/.