The Trump administration’s decision to repeal guidelines put in place by the Obama administration concerning transgender students’ bathroom access both misunderstands the gravity of the civil rights issues at stake for transgender youth (as well as transgender school staff and visitors) and underestimates how easy the so-called transgender bathroom problem would be to solve. Many people assume that sex-segregated bathrooms are necessary, but they are not, even in schools.
Our social constipation regarding bodily waste elimination leads many to dismiss or trivialize the political importance of public bathroom access. Pundits on both the left and right fall prey to this thinking. Witness self-described liberal Mark Lilla’s comment during an NPR interview that catering to “identity liberalism,” such as “the whole issue of bathrooms and gender” was a strategic blunder that cost Hillary Clinton the 2016 election. Lilla and others fail to understand that consistent access to public bathrooms predicates all other civil rights. Without access to bathrooms in the schools we attend, the places where we work, and the businesses we frequent, we cannot be in public. If you have never been harassed or chased out of a sex-segregated bathroom by a security guard, teacher or restaurant manager, you might take this fundamental right to public space for granted.
They also fail to recognize that a much larger group of people suffer from gender identity discrimination than the relatively small number of people who self-identify as transgender. It is not a “minority issue” in any sense of that term.
The Obama administration’s 2016 decision to interpret Title IX, the federal law governing sex discrimination in federally funded educational programs, as protecting students from “gender identity” discrimination was a key endorsement of transgender civil rights. But it was a piecemeal solution that left the real cause of gender identity discrimination intact.
In the first place, they were just guidelines, and so could be easily overturned, as has come to pass. Second, the guidelines failed to identify gender identity’s causal mechanism as sex-segregation itself.
Many gender-conforming transgender people, such as myself, do not experience gender identity discrimination in accessing public bathrooms because we do not appear to others to have altered our birth sex identity. And many people who do experience gender identity discrimination in public bathrooms do not identify as transgender. This includes a range of people whose appearances are “gender variant,” be they masculine-appearing girls or women, feminine-appearing boys or men, or androgynous people.
Some gender variant people are lesbian or gay, while others are bisexual, heterosexual or asexual. In the school setting, we should be especially skeptical of sex-classification policies because we know that children’s gender and sexual orientation identities are being formed and may be in flux.
The Obama administration was right to include gender identity discrimination as a form of sex discrimination. But it should have pushed further to question both the legality and constitutionality of sex-segregated bathrooms in schools, and federally funded educational programs more broadly.
This proposal sounds radical. But it is radical only if we believe the way we design and build public bathrooms is written in the brick and mortar of their current form.
Privacy and safety are important and legitimate policy goals for schools and other public institutions to take seriously. But these goals can be achieved more efficiently by better bathroom design that aims to eliminate gender identity discrimination. Some restaurants in Manhattan and Philadelphia have built a series of gender-neutral floor-to-ceiling partitioned bathroom stalls around a common area of sinks and mirrors.
In the school setting, why not do something similar: Build a series of single-user stalls with a common, open area for hand-washing that can be easily monitored by school officials? Not only is this a more efficient use of space, but it also provides a safer environment for everyone. In schools, this would also mean taking away a secluded space in which many children, not just those who are gender variant, are bullied.