Complaint Dismissed
'Transgendered' Teacher Still Free to Use Restroom of His Choice

by Susan Detlefsen

A complaint filed by a Minneapolis teacher who objects to the presence of a "transgendered" man in the women’s restroom at Southwest High School was rejected last month by the Minnesota Department of Human Rights, which ruled that there is "no probable cause" for state action.

The situation began in May of 1998 when school librarian David Nielsen started coming to Southwest High School dressed in women’s clothing. Nielsen also had his name legally changed to Debra Davis, but reportedly has not had a sex-change operation.

Minnesota is the only state in the U.S.which extends civil rights protections to trans-gendered persons (San Francisco and Seattle have similar city ordinances) thus Davis cannot be removed from his position.

Regarding the use of restrooms by different sexes, the legislature said that the law did not apply to "such facilities as restrooms, locker rooms, and other similar places." The Minnesota Family Institute argues that use of the opposite sex's restroom by a man is also a violation of a Minneapolis city ordinance.

Teacher Carla Cruzan encountered Davis in the women’s faculty lavatory and immediately complained to her superiors, who informed her that Davis has been given the discretion to use whichever bathroom he considered "gender appropriate." Cruzan filed a complaint last November with the Human Rights Department, claiming her rights to privacy and modesty were violated by Davis’ presence in the women’s bathroom.

Nearly a year went by with no action. In late August Francis Manion, senior regional counsel of the American Center for Law and Justice (ACLJ), sent a letter to the department on behalf of Cru-zan, calling for a prompt hearing to her complaint and a prohibition on Davis’ use of the women’s lavatory.

On Aug. 26 Cruzan received a letter from Janeen E. Rosas, the commissioner of the Human Rights Department, telling her the department found "no probable cause to believe an unfair discriminatory practice occurred" and that her charge of discrimination was dismissed. The letter suggested that either Cruzan or Davis use the unisex bathrooms located in the building or that a lock be installed on the women’s lavatory that either party could use when in the lavatory. Cruzan was dissatisfied with the suggestion, saying that even with the locks a meeting in the lavatory was still possible.

Cruzan is appealing the decision, and her complaint has been submitted to the Equal Employment Opportunities Commission (EEOC) for review. "We wanted to get out of the state system," explained Manion. If the EEOC upholds the department’s ruling, Manion will consider filing a lawsuit to challenge the ruling.

Cruzan says she is concerned not only for herself but for the privacy and rights of the over 900 female students and teachers at the school. "I’m not sure that the parents are aware that Davis can go into any bathroom he wants," Cruzan said. Cruzan believes that parents of students at the school aren’t informed about the broad discretion the school administration granted Davis when it allowed him to choose which bathroom was "gender-appropriate." She says the administration of the school gave Davis permission to use the girl’s lavatories as well, but only in "emergencies."

Even though the Human Rights Department ruled against Cruzan, the Minnesota Family Institute has called on the city of Minneapolis to enforce its ordinance which prohibits men from using women's restrooms and vice versa.

On Sept. 14, Tom Prichard, president of the Minnesota Family Institute, sent a letter to Robert K. Olson, chief of the Minneapolis Police Department, informing Olson that Davis was using the women’s lavatories. Minneapolis City Ordinance 385.120 prohibits men from using women’s restrooms.

In his letter, Prichard says, "Davis’ use of female restrooms is a violation of Minneapolis City Ordinance. The city ordinance clearly gives a woman a right to privacy from men while in the women’s bathroom," said Prichard. "The fact that this teacher dresses as a woman does not change the fact that he is biologically male."

In response, police officials said they will enforce the ordinance only at the request of the school.

Right now Cruzan and Manion are waiting for the ruling of the EEOC to determine their next course of action.

"I’m disappointed with the Human Rights Department [ruling] that modesty and privacy have nothing to do with religious belief," said Cruzan, who says she is prepared to go to court over this issue. "That’s fine. I think this is something the nation needs to be addressing at this time."