Members of the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) community have been openly fighting for equal rights under the law since the 1960s in the United States, and have made a great deal of progress toward equality over the last two decades. Homosexual couples are now able to marry in all fifty states, gay and transgender people are able to serve openly in the military, and antidiscrimination laws based on sexual orientation or gender identity are being passed country-wide. The rapid advancement of civil rights for LGBTQ people has triggered a backlash from conservative activists and politicians, who reject the concept that individuals who are nontraditional in their sexual orientation or identity deserve legal protection from discrimination. One point of contention that has gotten a lot of attention in the media and the courts over the last few years is the right of transgender people to use the bathroom, locker room, or changing room that is appropriate for the gender with which he or she identifies. As Archibald (2016) explains in her analysis of the issue: “In courts, legislation, and agency interpretation of statutory and regulatory law, transgender individuals are gaining the right to use bathrooms and locker rooms that match their gender identity” (p. 3). The bitter conflict over public bathroom use for transgender people is typical of the type of social growing pains that have accompanied progress in civil rights for vulnerable groups.
Binary sexual segregation of public ‘private’ spaces, such as bathrooms and dressing rooms have been the norm in the United States since the late nineteenth century. While unisex single-room bathrooms are growing in popularity in many commercial spaces, separate men’s and women’s rooms are still standard in most public buildings. Separate facilities for the sexes is based, in part, on deeply held cultural beliefs that equate bodily exposure with sexual stimulation. Many of the individuals who oppose the right of transgender people to use the restroom designated for the gender with which they identify have religious objections to the practice. They feel that an individual who was born a biological male would be sexually stimulated by what he would see in a women’s restroom, and might pose a threat to female users.
At the core of the opposition to transgender choice on restroom use is a basic misunderstanding of how people undergoing gender reassignment think and behave, and a moral objection to the process of gender reassignment itself. Religious arguments are often used to condemn the LGBTQ community for being ‘sinful’ and for choosing a ‘lifestyle’ that violates the religious beliefs and commandments of their opponents. Conservative legislators realize that a religiously-based ban on transgender bathroom choice is difficult to defend in a country whose constitution specifies a separation of church and state. They have tried to use anecdotal reports of assaults on children and women by male-to-female transgender individuals in women’s rooms to support banning transgender people from bathroom selection. The problem with this tactic is that there are no verified incidents of this type of assault ever having taken place. Court battles over the rights of transgender people to choose the bathroom that conforms to their gender identity are based on civil rights and whether transgender status qualifies someone for protection as a member of a vulnerable group.
The debate about transgender bathroom use has been particularly active in schools. Under Title IX, an Education Amendment passed in 1992, public schools may not discriminate against students based upon their sex. There are approximately 150,000 individuals between the ages of thirteen and seventeen who identify as transgender in the United States. In response to some schools prohibiting transgender students from using bathrooms and locker rooms that do not match the sex listed on their birth certificate, the Obama administration issued a ‘Dear Colleague’ letter advising the schools that such prohibitions were a violation of the students’ civil rights. Schools were warned that the continued enforcement of such prohibitions could result in the loss of federal funding. The Trump administration has since rescinded this guidance, claiming that Title IX does not cover this issue, and throwing argument back into the court system (Hersher & Johnson, 2017).
The LGBTQ community has achieved significant changes in how Americans view sexual orientation and gender identity. Through effective political activism and organized educational campaigns, society has become much more accepting of nonconforming sexuality. In accordance with changes in attitudes, Americans need to make changes to our public physical environment. The concept that heterosexuality is the only acceptable form of sexuality is reinforced by the binary arrangements of public facilities such as bathrooms (Herman, 2013, p. 65). Forcing a transgender person to use a bathroom designated for the sex that they are transitioning from is emotionally punitive. By trying to legislate gender identity by chromosomal make up, homophobic activists and legislators are using the state to deny the legitimacy of a transgender person’s experience. Whether a transgender individual has begun the hormonal and surgical transition or is only at the stage of dressing in the clothing of their identified gender, being compelled to use facilities for what they feel is the wrong gender is psychologically damaging. The argument that transgender people pose some kind of danger to children or women in female restrooms is false, and based on bias and homophobia. Transgender people are a vulnerable minority whose civil rights merit protection under the United States Constitution. It is time to adapt our public environment to match the progress that our society has recently made in tolerating and accepting nonconforming sexuality.
- Archibald, C.J. (2016). Transgender bathroom rights. Duke Journal of Gender Law & Policy. 24(1), 1-31. Retrieved from http://scholarship.law.duke.edu/djglp/vol24/iss1/1
- Herman, J.L. (Spring 2013). Gendered restrooms and minority stress: The public regulation of gender and its impact on transgender people’s lives. Journal of Public Management and Social Policy. 65-80. https://williamsinstitute.law.ucla.edu/wp-content/uploads/Herman-Gendered-Restrooms-and-Minority-Stress-June-2013.pdf
- Hersher, R. & Johnson, C. (Feb. 22, 2017). Trump administration rescinds Obama rule on transgender students’ bathroom use. The Two-Way: Breaking News from NPR. www.npr.org/sections/thetwo-way/2017/02/22/516664633/trump-administration-rescinds-obama-rule-on-transgender-students-bathroom-use