Transgender Rights: The (bath)Room Where It Happens

Suffice it to say that bathrooms have recently leapt into the spotlight. The past several years have brought controversy to restrooms through a number of bills written to regulate who accesses bathrooms labeled for men or women. These bills have seemed to specifically target transgender people, often including legislation that requires that people use the bathroom that would align with the sex that they were assigned at birth. (If you’re not clear on terminology related to gender identity, like transgender or cisgender, check out our previous post with some introductory information.) It’s certainly not a new issue; as transwoman and transgender rights activist, Laverne Cox, stated, “Trans people have been going to the bathroom for a very long time.” To catch you up, we’ll start by going over a brief history of recent legislation and federal guidelines, then discuss some of the arguments raised in this debate.

Looking Back: Over the last year

One of the most widely known pieces of recent legislation regulating transgender people’s access to public accommodations is the North Carolina bill, HB2, that was passed and enacted in March 2016. The bill – like many that are dubbed “bathroom bills” – prohibited people that are transgender from using a bathroom with a label different from the sex listed on their birth certificate in public buildings, including schools and public colleges, among other things. This legislation was in response to an anti-discrimination ordinance that had been passed in Charlotte, North Carolina’s largest city, prohibiting discrimination on the basis of sexual orientation, gender expression and gender identity. Many businesses and organizations,including the NBA and NCAA, responded to HB2 by cancelling expansions or relocating major events in protest of HB2. Three transgender people brought a lawsuit to stop the University of North Carolina from enforcing HB2 and a district court granted this request in August 2016. The court stated that the people bringing the suit had a strong case that the bill violated Title IX, a federal law that prohibits discrimination based on sex in any educational program that receives money from the federal government. The U.S. Court of Appeals for the Fourth Circuit will hear arguments in the lawsuit challenging HB2 in May of this year.

North Carolina has been the only state to enact legislation requiring people to use the multi-user restrooms, locker rooms, and other sex-segregated facilities designated based on the sex assigned at birth, though 14 states have introduced similar legislation for consideration this year. In our state of Wisconsin, a similar bill was introduced in fall 2015 and died in committee. In contrast, there are currently 18 states and the District of Columbia that have specific legislation prohibiting discrimination on the basis of gender identity.

In May of 2016, then-Attorney General Loretta Lynch made a statement in response to North Carolina’s HB2 stating that the legislation violated federal civil rights law; the department filed a lawsuit to prevent HB2’s enforcement and said that they would consider limiting federal education dollars to North Carolina. The same day, North Carolina filed a lawsuit against the federal government on the basis that its intervention was federal overreach.

Around the same time, the Justice and Education departments issued guidance for schools to ensure that “transgender students enjoy a supportive and nondiscriminatory school environment,” which included recommending that transgender students be protected from discrimination under Title IX by, among other things, being allowed to use the bathrooms and changing rooms of their identification. Thirteen states, including Wisconsin, then brought a lawsuit challenging this guidance, and a judge in the U.S. district court issued a nationwide injunction in August of 2016 that would prevent enforcement of these recommendations.

Recently, the Justice and Education departments under the new administration issued a statement in February 2017 rescinding the guidance from the Obama-era departments, stating that they lacked legal basis and vetting and that these decisions should be deferred to state and local governments. This statement did not give guidance or direction for schools that have transgender students in attendance. The Supreme Court referenced this statement when it stated that they would not hear a case brought by a transgender boy from Virginia, Gavin Grimm, who had argued that rules barring him from using the boys’ bathroom was discriminatory under Title IX and the guarantee of equal protection under the law by the Constitution. The case will be sent back to the district court that originally ruled in Grimm’s favor, where the court will re-evaluate the case in light of the guidance of the new administration (rather the guidance previously put forward by the Obama administration).

Whew. It’s been quite a year, huh?

Bigger than Bathrooms

Though many people do not spend a whole lot of time talking about when and where they pee (among other things), limiting and regulating access to safe bathrooms has real consequences. Some transgender people that have not felt safe in public bathrooms limit their fluid intake or avoid urination, which can lead to dehydration and urinary tract infections. And limiting access to public accommodations is just one of many forms of discrimination that transgender people may experience in their day-to-day lives, and the sum of these frequent forms of oppression is thought to have the potential to have significant negative impacts on physical and mental health.

Additionally, proponents of these so-called “bathroom bills” cite concerns about safety of cisgender people when defending their bills, evidence actually suggests that bathrooms are unsafe for transgender people and there is not evidence that allowing transgender people to use the bathrooms of their choice impacts the safety of others.

Paramount in understanding the surge of interest in bathrooms is understanding that these laws are not really about bathrooms at all. As Laverne Cox aptly states in her succinct and to-the-point discussion of this issue, “These bills are about whether trans people have the right to exist in public space.” Regulating bathrooms in this way is a way of saying that a person that is transgender should not have the right to use the toilet in any gender-segregated bathroom and thus – given that we’re all human, and that urinating and stooling is a necessary part of that experience – regulating bathrooms in the ways that these laws propose is a way of saying that transgender people are not welcome in public spaces.

On the up side, let’s acknowledge that there are many groups – including schools and school districts, state and local governments, and many other public and private organizations – that have taken steps to welcome transgender people into their spaces by creating protections for transgender people and affirming their rights in many forms. For more information about creating a supportive spaces for transgender youth, check out the work of organizations like Gender Spectrum or Wisconsin-based GSAFE.