January 2017 Bar Bulletin
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January 2017 Bar Bulletin

The Bathroom Battle: A Culture War

By Lee Schubert


How many of us thought that the next big civil rights battle, after same-sex marriage was declared legal, would be over who can use what bathroom? And yet, that is clearly what is happening, and it is happening on several fronts.

The issue first came to the attention of the general public with the North Carolina law forbidding transgender men and women from using public men’s and women’s restrooms, respectively. But it had already been gaining momentum less conspicuously in schools, school boards and courts, concerning the right of school children to use the school bathrooms consistent with what they consider to be their true gender identities. And now the U.S. Supreme Court is about to enter the fray.

Why such a storm over the lowly bathroom? The answer is that bathrooms are a very emotional issue to both transgender people and most other people. From childhood, we are taught that the bathroom is the ultimate bastion of privacy, and that the need for privacy comes primarily from the fact that there are two different sexes.

We learn that one of the major transgressions is for a boy to enter the girls’ room or a girl to enter the boys’ room. And although some of the rules that society teaches to children are not so strictly applied to adults, this one remains for everyone, regardless of age.

Transgender people grow up with the same general emphasis on using the right bathroom, but when they come to realize that they identify with the gender that does not match the sex they were assigned at birth, things get more complicated. A transgender girl or woman, for example, feels that she belongs in the same bathroom as any other girl or woman. But other people may insist that she use the one designated not for her gender, but for her physical sex.

The very fact that the bathroom one uses is so strongly identified with one’s gender makes it very important to transgender people, young or old, to use the facility that matches their true gender identity. Denying them that right feels to them like denying who and what they really are.

When the North Carolina legislature passed HB2, it was reacting to an ordinance passed by the city of Charlotte that allowed transgender people to use bathrooms corresponding with their gender identity. The new state law nullified that ordinance and any similar local laws, declaring that everyone must use the bathroom corresponding to his or her sex as identified on the individual’s birth certificate. The law immediately set off a legal firestorm with the Justice Department suing North Carolina and the State suing the federal government, although the latter suit was soon withdrawn.

Although former Gov. Pat McCrory soon clarified that the law pertains only to public institutions and not to private businesses or nonprofit organizations, it seems clear that the legislators did not understand the implications of the law and had no conception of the potential backlash against their state.

The alleged purpose of the law was to prevent men from claiming to be women in order to enter women’s restrooms to molest women or girls. There is little evidence that this would actually happen, but the law might actually have two unfortunate and almost certainly unintended results.

First, transgender men, who are often indistinguishable from any other man, would be required to use women’s rooms. There would thus be no way for a woman to know whether a man coming into the room was violating the law or simply obeying it. On the other hand, transgender women would be required to use men’s rooms, where they could be at serious risk of assault.

It is well documented that transgender women are often victims of violence. In addition, some states allow transgender individuals to have the sex on their birth certificates legally changed, so a transgender woman entering a women’s room might be doing exactly what the law tells her to do.

But these potential unintended consequences may be of much less concern to North Carolina than are the very immediate and tangible financial consequences. Almost as soon as HB2 was passed, the state became something of a pariah to many businesses, athletic organizations and entertainers. Events were cancelled and plans to expand businesses into North Carolina were dropped. This trend continues and the state is already losing significant money.

Meanwhile, one large company has reacted in a different way. The retail giant Target has declared that customers in its stores are welcome to use the restrooms that match their gender identities. This, in turn, has outraged many religious conservatives, and the American Family Association has organized a boycott against Target. More than a million people have signed a petition agreeing to join the boycott, which is being aggressively promoted by the prominent evangelical preacher Franklin Graham.

Graham’s vocal support of the boycott sheds some light on the real reason for much of the opposition to transgender people using the bathrooms that correspond with their gender identities. Many people, especially political and religious conservatives, simply do not believe there is such a thing as gender identity as distinguished from physical sex. Graham urges this point by saying that everyone’s sex is either male or female, as God created them.

Although the American Family Association insists that its only concern is for the safety of women and children, it has not been satisfied with Target’s decision to provide single-stall bathrooms, which would address the safety and privacy issues. It is quite possible that, at some time, conservatives may actually call for a legal definition of gender, just as they previously called for a legal definition of marriage.

For now, the North Carolina law is still in effect, although the new Democrat governor, Roy Cooper, has vowed to repeal it,1 and attention has turned to the more specific issue of what bathrooms should be used by transgender children and teenagers in schools. This issue has received increasing attention in recent years, as more and more children have identified as transgender and their parents have put more and more pressure on schools to accommodate their needs.

Schools and school boards often resist these pressures, and a number of such cases have ended up in court. But judicial outcomes have been inconsistent up to now, and all eyes are turning to a case that has brought the issue to the U.S. Supreme Court.

The case is Gloucester County School Board v. G.G. Gavin Grimm, a student at a Virginia public high school, is a transgender boy who was denied the right to use the boys’ bathroom. In July 2015, he sued the school board for discrimination under Title IX, but the case was dismissed by a District Court. He then appealed to the Fourth Circuit Court of Appeals where a panel of judges reversed the decision. The court accepted a January 2015 statement by the Department of Education that interpreted one of its own regulations concerning Title IX.

The Court of Appeals acknowledged that the Department of Education regulation allows schools to offer “separate toilet, locker room, and shower facilities on the basis of sex.” But the Department’s interpretation of the regulation says that when such separation is made on the basis of sex, the school “generally must treat transgender students consistent with their gender identity.”

The court accepted that interpretation on the grounds that the regulation is ambiguous because it does not specify how sex is to be determined. The interpretation resolves that ambiguity, by providing that in the case of transgender students, sex as male or female is to be generally determined by reference to the student’s gender identity.

The Obama Administration further underscored the Fourth Circuit decision in May, only a few days after the Justice Department filed suit against North Carolina over HB2. The departments of Justice and Education jointly issued guidelines for schools about how to deal with the transgender bathroom issue.

Similar to the 2015 statement, they clearly state that under Title IX schools receiving federal funding must let students use the bathrooms consistent with their gender identities. It was also clear that failure to comply might mean loss of that federal funding. Schools across the country took notice and were definitely frightened.

In August, District Judge Reed O’Connor of the Northern District of Texas granted an injunction against enforcement of the guidelines, as sought by 13 states shortly before the beginning of the new school year. He ruled that the guidelines “contradict the existing legislative and regulatory text.” The ruling, which the judge said applies nationwide, was a rejection of the Obama Administration’s claim that protection of transgender rights has already been granted by existing laws against sex discrimination. But its force is unclear, since it seems to conflict with rulings by higher courts.

The Gloucester County School Board has gone on the offensive and taken the Grimm case to the Supreme Court. The case is being closely watched, partly because the Fourth Circuit is also the court with jurisdiction over North Carolina. If its decision stands, there could be serious implications for HB2. The school bathroom issue and the broader public bathroom issue are now closely linked.

With conflicting court decisions popping up in various jurisdictions, it was clear that any resolution of the transgender bathroom issue would have to come from the Supreme Court. The Court accepted that responsibility on October 28, when it agreed to hear Grimm’s case. Its decision will be of great import because in order to determine how Title IX applies to transgender students in public schools, the Court will have to examine the legal relationship between sex and gender identity, and perhaps even the nature of gender itself. The result could eventually affect far more than who should use what bathroom.

The outcome of Gloucester County School Board v. G.G. may depend largely upon two wild cards. The first is the makeup of the Supreme Court when the case is heard. If a new justice has not been nominated and confirmed, a 4-4 decision is a distinct possibility. That would mean a loss for the school board and a win for Grimm, but would leave the key legal question about the interpretation of Title IX unresolved.

If the appointment is made and confirmed by then, the choice of justice might determine the decision. But what would happen if the Trump Administration simply withdrew the Obama Administration’s interpretation of the relevant regulation or even changed it to have an opposite effect on the application of Title IX? Would the school board simply withdraw its case?

Although the focus of the debate and the lawsuits so far has been on which gender-segregated bathroom a transgender person should use, another question has been lurking in the background: Should bathrooms be gender-
segregated in the first place?

Many in the transgender community feel that the obvious way around the transgender bathroom issue is for all bathrooms to be gender neutral. This solution, though simple, would probably draw even more opposition than letting transgender people use the ones that are consistent with their gender identities. The stated objection would again be about privacy and safety, but the basic issue would be that males and females are fundamentally different and that segregated bathrooms have long been a primary symbol of the importance of that difference and of the need to physically separate them in some contexts.

What is really involved in the transgender bathroom cases is the broad issue of sex, gender and their implications for social standards. Some people are calling it a culture war, and that may not be an exaggeration.

Transgender people have brought to the forefront the basic question of whether there is such a thing as gender identity, distinguished from physical sex. The Obama Administration has said that there is and the Fourth Circuit has accepted that distinction in the interpretation of Title IX.

If the Supreme Court accepts it, and especially if it does so in language not specifically limited to bathrooms and public schools, the potential effect on the structure of American society could be huge. This is a case to watch closely for both its legal and social implications.

Lee Schubert is the author of “Woman Incognito: Transsexual without Transition.”

1 Editor’s Note: Charlotte repealed its ordinance after the November general election and at press time the North Carolina legislature was considering whether to repeal HB2.


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