FOI Alyson Carrel (Northwestern) sends this reflection on the recent events in the case of Jewlyes Gutierrez.

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This past week, Jewlyes Gutierrez, a transgender teen who was charged with misdemeanor battery after getting into a fight with three other girls who had allegedly been bullying her for weeks, was offered the chance to use restorative justice instead of being charged through the criminal court system.  The media is reporting this as a victory and from a number of different perspectives it is. From a youth advocacy point of view, this is a victory because it keeps a youth out of the system.  From the transgender activist point of view, it’s a victory because it shifts the blame from the victim and gives the teen an opportunity to educate her bullies about what it is like growing up transgender and maybe help them see that she is just a teen struggling to make it through high school like them. It is also a victory from an ADR advocates point of view it is a victory because the system is actively using an alternative means of resolving the dispute that gives the parties voice and control over the outcome.

While this can be seen as a victory in so many ways, I think it should also provide us a word of caution or at the very least an opportunity to reflect  on how ADR is used and its impact on developing areas of law. I know many of us are using the term “Appropriate” instead of “Alternative” to define the “A” in ADR (or dropping the “A” altogether).  And this situation uniquely brings up why.  For years, we have advocated for the use of ADR processes, to ensure there is access to justice, participation in their own resolution, and more.  For Jewlyes, restorative justice may be the right answer. But as issues in the LGBT community finally come to the forefront, my fear is that any desire to keep issues private, or resolve things calmly and collaboratively, will in fact lead to exactly the situation Owen Fiss and Laura Nader (and others) describe when they caution against the use of ADR.  The transgender community is only recently seeing some attention in mainstream media and identifying the need for law reform.  In the last two years we have seen transgender characters more accurately portrayed in popular TV shows like Glee and Orange is the New Black.  Outside of the fictional world, we have seen more attention given to transgender issues thanks to trans advocates like Janet Mock, author of Redefining Realness, who is actively discussing the transgender experience and struggles on shows like Piers Morgan and Colbert Report.  As transgender issues finally gain more media attention, we need to make sure we understand the impact using ADR can have on a developing area of law.

Over the past year, we have seen cases across the nation regarding the right of transgender students to use the bathroom assigned to their gender identity.  In each of these cases, a student is told they may not use the bathroom of their choice, but must use the bathroom of the gender they were assigned at birth, a faculty bathroom, or worse, as was experienced by a Florida nursing student, a storage closet that does not even lock from the inside.  While restorative justice and other ADR processes might change the ability of one student to use their preferred bathroom at one school, it is only through legislative action and precedent setting court decisions that we can see that right afforded to all transgender students across the board.  That is exactly what happened in Maine earlier this year.  In Doe v. Regional School Unit 26, the Maine Supreme Court ruled that barring a transgender student from using the bathroom of her choice was against the law.  They write, “Where, as here, it has been clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity, denying access to the appropriate bathroom constitutes sexual orientation discrimination in violation of the [public accommodations law].”  And in California, a law went into effect January 1, 2014 that allows transgender students to use facilities and participate in programs that match their gender identities.

In talking with colleagues in Northwestern’s Children and Family Justice Center, they were clear that any action that keeps Jewlyes out of the criminal system is a victory.  I certainly can’t argue with that.  My concern, however, is that without further protection, will the bullying ever stop?  And what about other transgender teens that are facing the same situation?  According to the Transgender Law Center, “89% of transgender youth reported having been harassed at school within the previous year. Another comprehensive study found that, of transgender people who reported being harassed at school, a staggering 51% had attempted suicide.”  These statistics demonstrate the unique hardships facing transgender teens and the need for more systematic reform and protection.

It isn’t that the use of restorative justice or other ADR type of processes is wrong here, it’s just that we need to make sure the right process is being used to meet the interests of the parties.  It is the balance of the private vs. public.  What the private individual wants vs. the public need for systematic and wide spread change and protection.   And the need to use multiple approaches to address this situation.  This area is important to me as an individual who supports transgender rights, but also as a teacher who is trying to impart on law students the ability to counsel clients on the different ADR processes available and strategically choosing the most effective process to meet the client’s interests.

To hear Jewlyes story, see this <a href="“>video.