The Transgender Bathroom Debate: A Conflict of Rights

Now that the gay marriage issue has been effectively settled, whether transgender people should be able to choose the bathroom and locker room of choice is the debate du jour. This issue took center stage when North Carolina passed a law stating a person must use the bathroom that corresponds to the birth gender.  This law was passed to override a new Charlotte law that said anybody could  choose a bathroom based on their sexual identity.  While this is not the most important issue of our time,  for some people this will significantly affect their lives, so it should not be dismissed as silly or irrelevant.

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For the purposes of this discussion, I will focus more on the locker room situation than the bathroom situation.  While the same issues all apply for bathrooms, the effect of being in a closed stall in a common room is far less than the effect of sharing a shower with someone of the opposite gender.

What is the right and wrong of requiring that people be required to use the bathroom of their physical gender?  Some people firmly believe that transsexuals are sick and evil.  Others believe that those who oppose mix-gender locker rooms are homophobic and evil.  I reject both of these views.  I think of this as a case of competing rights:

  • A locker room or bathroom can be a hazardous and traumatic place for a transgender person.  The transgender person is a target for ridicule and bullying.  I would think that any reasonable person would not want to subject anybody to this unnecessarily.   The transgender person might also feel that he or she should have an inherent right to use whichever facility he or she chooses.  This right is much more debatable and a good person can take either side of this issue.  It also is unnecessary for this discussion.  The reasonable fear of bullying should be sufficient to establish that the viewpoint of the transsexual is valid.
  • A person should be able to use a locker room without being gawked at or exposed to a person of the opposite gender.  In particular, a fourteen year old girl should be able to take a shower after physical education class without having a boy walk into the shower with her.

Additionally, not all people who wish to use the locker room of the gender not assigned at birth are not the same.  Note that by definition a trans woman  is someone who is born as a man and identifies as a woman.  A trans man is someone who is born as a woman and identifies as a man.  We can divide these people into four groups:

  1. Some transsexuals have already had sexual reassignment surgery.  The North Carolina law says that people should use the bathroom of birth.  To me, it seems ridiculous to say that a person should not use the locker room that corresponds to their current genitalia.
  2. Some transsexuals look like their gender of choice.  If a trans-woman looks like the woman, it would seem reasonable that she should use a woman’s restroom and would be out of place in a men’s restroom.
  3. Some transsexuals look like their gender of birth.  If a trans-woman has a beard and looks like a trucker, it would seem reasonable that a woman would be very upset to have this person share a shower with her.
  4. Heterosexual men who are not transsexuals will take advantage of these rules to get see naked women and to expose themselves to women.  Does   anybody think that high school boys will not dare each other to claim that today they  identify as a woman and go into the girl’s shower?  Why should a pervert risk getting arrested flashing in a park or peering through a bedroom window when he can safely go into the women’s locker room?

I would think that a reasonable person would say that group 1 should be able to use the locker-room of their current physical gender, that group 4 should not be allowed to use the other gender’s bathroom, and that with groups 2 and 3 we should try to reach a reasonable compromise.  I think it is also fair to say that each case is different.  The transgender person is different and the available accommodations are different.  When we try to impose a draconian solution in either direction, we lose the ability to reasonable.   The Charlotte law was extreme in one direction and the North Carolina law was extreme in the other direction. Think of the zero tolerance policies in sexual harassment that result in a kindergarten boy being arrested for kissing a kindergarten girl.

I personally am not worried about true transgender people using a bathroom, but I think that the concern that it will be abused by straight people is quite real.  I have seen this concern dismissed in the media by two arguments:

  • First, they claim that this hasn’t happened.  While it hasn’t happened in numbers yet, it certainly has happened.  In one reported instance, a Seattle man invaded the woman’s locker room at a public pool.  It hasn’t happened more because until now, there were severe penalties.  Previously a high school boy entering the girl’s shower could get expelled and arrested.  When the penalties go away, the instances will go up.
  • Second, I have heard arguments that  women just need to get over their discomfort and get used to.  The Charlotte Observer compared it to white people needing to get used to sharing restrooms with blacks after desegregation.  This is a value rather than a factual statement so each person needs to evaluate this argument based upon his or her own values.  I do think it is interesting that the same people who complain about the “rape culture” and who claim a man who looks at a woman in a sexual manner is guilty of sexual harassment then claim that women just need to get over their discomfort with sharing a shower with a strange man.

If we accept the proposition that both sides in this argument have reasonable concerns, then, how do we come up with a reasonable solution?

  • First, we don’t make draconian laws in either direction.  We don’t have a law that saying no transgender people can use the bathroom for the non-birth gender.  We also don’t pass laws saying that anybody can use any bathroom they feel like using that day.
  • Second, if you want special accommodations, you should have an official diagnosis. By requiring a diagnosis, you are eliminating most if not all  non transgender people who would try to exploit the situation.This is entirely consistent with the way we handle other accommodations.  I have experience as my son had a diagnosis that was helped by special accommodations made by the school.  For example, he was allowed to pace at the back of the room instead of sitting at his desk.  He also was allowed to take a health course instead of the conventional physical education course.  We greatly appreciated how a team of counselors, teachers, and administrators would meet together with us to device reasonable accommodations that would help his educational experience.

    A transgender person with a diagnosis should receive the same kind of help.  Without this diagnosis, there should be no accommodations.

  • Third, we should look for reasonable accommodations that attempt to respect both the needs of the transgender person and the needs of others.  These accommodations should be decided on a case by case basis.  For example, in some schools it might be easy to designate separate gender neutral bathrooms.  In other schools, this might be cost prohibitive.

For example, here are  a few possible accommodations for a trans-woman who has an official diagnosis and would need to take a shower after physical education class.

  • Don’t require the trans-woman to take physical education.
  • Designate in advance one period where transgender showers will be allowed.  If you are transgender, you must take your PE class that period.  If you don’t want to shower with a transgender person, take your PE class any other period.
  • Have a separate gender neutral facility if one is available.

The key factor is to allow this flexibility.   In May 2016 the Obama administration issued a directive that require school districts to allow transgender students to use the bathroom of their choice based upon the request of the parent or legal guardian (New York Times).  There are three problems with this directive:

  • While requiring a parental request is better than relying on a student request, it is not as good as requiring an actual diagnosis.
  • There is no flexibility to accommodate the rights of others.
  • There is no reasonable legal authority for the administration to issue this directive.  It relies on the Title IX prohibitions against sexual discrimination, but Title IX does not mention trans-sexuality.  There also were no other hearings or comment periods or any of the normal procedures required before any such directive can be imposed.

When we have right versus wrong, we don’t want to compromise.  We shouldn’t compromise with Nazis or terrorists.  When we have competing rights  then we should be able to compromise to find a solution that tries to respect the rights of all.  Let’s compromise and work this out.

 

 

 

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