Why the government is responsible for resolving bathrooms in schools

During the presidential campaign, then-candidate Luiz Inácio Lula da Silva classified as “absurd” the statement that his government would implement gender-neutral bathrooms in schools to accommodate students who identify as transgender. “The story of a unisex bathroom could only have come out of Satan’s head,” he said, at a rally with left-wing evangelicals in October last year.

But, in the ninth month of government, the idea has already received approval from an official body: the National Council for the Rights of Lesbian, Gay, Bisexual, Transvestites, Transsexuals, Queers, Intersex, Asexual and Others — identified by the acronym CNLGBTQIA+.

On September 22, the board published a resolution requiring, among other things, that students be able to use the bathroom of the gender with which they identify. “The use of bathrooms, changing rooms and other spaces segregated by gender, if any, must be guaranteed, in accordance with the identity and/or gender expression of each student”, says the document.

The resolution was signed by the president of the Council, Janaína Barbosa de Oliveira. Affiliated to the PT, she is part of the party’s National LGBT Secretariat. The case generated immediate repercussions in Congress, where opposition parliamentarians criticized the content of the document.

The Executive’s reaction was to deny any participation in drafting the text.

Government denies participation

After the repercussion of the case, the federal government issued a note in which it claimed that it was all “fake news”. “CNLGBTQIA+ operates autonomously, in which neither the Minister of Human Rights nor the President of the Republic had participation or influence in the production of the resolution”, states the statement. The Minister of Human Rights, Sílvio de Almeida, even called the AGU (Attorney General’s Office) to take action against people who spread “fake news” involving the case. “Whoever uses lies as a means of doing politics, encourages hatred against minorities and does not behave in a republican way must be treated with the rigors of the law. That’s how it will be,” he wrote, on his page on the social network .

But the truth is that, in the most benevolent hypothesis, the government plays a double game in this case.

From a technical point of view, the Executive is right when it says that the CNLGBTQIA+ does not have the power to implement policies on its own, without the approval of the Ministry of Human Rights or the National Congress.

But an important detail goes unnoticed in the Lula government’s denial: the creation of the body was made by the president himself in Decree 11,471, published on April 6 of this year. The decree says that the body has a “consultative and deliberative nature”.

Furthermore, half of the body’s 38 members are part of the federal government itself. The other half comes from “civil society”, which in most cases is synonymous with NGOs with radical left-wing agendas. According to the decree, members of civil society must belong to organizations committed to promoting “the rights of LGBTQIA+ people”. This means that positions critical of the movement’s demands have no space on the council.

In other words: the government is, yes, responsible. First, for having created the council with a “deliberative” nature. Second, because it has its members — the same members who approved the resolution in favor of the use of female bathrooms by male students and vice versa.

“Half of the council members are from the government and 100% of the members were appointed by the Minister. Furthermore, according to the minutes of the council meeting, members of the Ministry of Human Rights and the Civil House were at the meeting that approved the resolution”, it states deputy Marcel Van Hattem (NOVO-RS).

Furthermore, the language of the resolution is not suggestion, but determination. The text says that the council “resolves” (that is: decides). All of the first six articles begin with the verb “Must.” The first, for example, says that “Public and private educational institutions and networks, at all levels and modalities, must guarantee the recognition and adoption of social names for students whose civil identification does not adequately reflect their identity or gender expression.” The text goes so far as to ask parents to report schools that do not comply with the measures listed in the resolution.

It does not follow from the fact that the board does not have the legal power to impose rules that the board did not attempt to impose rules by exceeding its powers.

Risks to children

The document in favor of the use of bathrooms according to gender identity also provoked reactions from groups that work in defense of women and children.

Maiara da Silveira, director of Matria (Association of Women, Mothers and Workers of Brazil), says that the adoption of a gender agenda in schools affects students in general, and can keep girls away from basic education.

Celina Lazzari, spokesperson for Movimento Infância Plena, says that the government’s double game was expected. “It was perhaps surprising due to the speed with which they are trying to pass these ‘norms’. But, since the federal government admitted the entry and interventions of anti-women and anti-child groups, this was somewhat expected”, she says, who works to prevent that the definition of woman also includes men.

For Representative Van Hattem, the episode is yet another example that the councils created by the Executive under the justification of listening to “civil society” have exceeded their responsibilities and tried to usurp the powers of the Legislature. “It is necessary to review the entire structure of councils that exist today in Brazil to find out whether they really are councils to advise and, therefore, consultative or to determine. Determining, legislating, is not the function of the council, but of the Legislative Power”, he says.