Bathroom Bills

What is the Real Purpose of Bathroom Bills?

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Jeffry Iovannone, PhD

Jeffry J. Iovannone is a queer feminist scholar-activist, who has a PhD in American Studies.

Gavin Grimm is a seventeen-year-old transgender student from Gloucester County, Virginia. For several months in 2014, he used the boy’s bathroom at school with no incident until parents began to complain. These parents thought is was inappropriate and perhaps even harmful for Grimm, who was assigned female at birth, to use the bathroom corresponding to his gender identity. The Gloucester County School Board voted 6 to 1 to bar Grimm from the boy’s bathroom, instead forcing him to use a single-occupancy staff bathroom used by no other student. With the assistance of the American Civil Liberties Union (ACLU), Grimm sued the Gloucester County School Board for violating his rights under Title IX, a piece of federal civil rights legislation that prohibits discrimination in education on the basis of sex.

Grimm’s case was slated to be heard by the Supreme Court this month (March 2017). On March 7th, however, the high court vacated and remanded the case, sending it back to the 4th Circuit Court of Appeals following the Department of Justice and Department of Education rescinding the Obama administration’s Title IX guidance, which specified that transgender students were protected under the law, particularly in respect to chosen names, personal pronouns, school dress codes, and the use of restrooms and locker room facilities that corresponded to students’ gender identities. Because the 4th Circuit Court of Appeals largely based their initial ruling on Obama’s guidance, they will now have to reconsider their decision in light of the stance of the Trump administration. Several years could pass before Grimm will have his day before the Supreme Court. Transgender Americans will have to wait on what could have been a major civil rights victory. Despite this setback, Grimm’s case, and his willingness to share his story in the pursuit of justice, has raised significant awareness of transgender people’s rights in relation to the introduction of so-called “bathroom bills” in state legislatures throughout the country.

Why are so many of these bills being introduced, and do they serve a purpose beyond conveying that many conservative, in particular conservative Christians, believe transgender people are invalid, and that gender is immutable from birth? The answer, I argue, relates to the battle for marriage equality, in which debates over the right to marry one’s partner regardless of their gender was used to galvanize conservative Christian voters, particularly during then-president George W. Bush’s bid for reelection in 2004. Both then and now, members of the LGBTQ community are positioned as threats to traditional American values and institutions, and exploited as political pawns to increase voter turnout for conservative GOP candidates.

A Brief and Incomplete History of the Battle For Marriage Equality and the Rise of Bathroom Bills

In 1996 Congress passed the Defense of Marriage Act, colloquially referred to as DOMA, a law which, for federal purposes, defined marriage as between a man and a woman. In 2004, Massachusetts became the first state to legalize same-gender marriage in the landmark case Goodridge v. Department of Public Health. President George W. Bush seized on the Massachusetts’ Supreme Court ruling as a tactic for this reelection campaign. Bush, in a public speech, called on Congress to pass a Constitutional Amendment to protect traditional marriage, citing his fear that DOMA was vulnerable to repeal. By centering the protection of traditional marriage in his reelection platform, Bush successfully turned out the conservative votes needed to secure a second term in office. California then became the second state to legalize same-gender marriage in 2008 when a California court ruled that denying gay couples the right to marry violated the equal protection clause of the state’s constitution, which guarantees equal protection under the law. The court’s ruling was overturned, however, with the passage of Proposition 8 in November of 2008. Marriage equality was granted in all 50 states with the landmark Supreme Court case Obergefell v. Hodges in 2015, which fully overturned DOMA.

Despite this significant victory in the fight for LGBTQ rights, the LGBTQ community lacks full federal equality, as there are currently no laws granting the protection of the federal government on the basis of sexual orientation and gender identity. When conservative politicians and advocacy groups could no longer exploit gay marriage as an issue, they began to explicitly target the transgender community via anti-transgender legislation such as “bathroom bills.” Transgender people are already legally vulnerable, lacking the same protections in all 50 states, and face unique legal challenges in relation to issues such as obtaining identity documents, access to healthcare, employment non-discrimination protections, and bathroom rights. The Human Rights Campaign has accurately described the current state of affairs as a “patchwork” of LGBTQ legal protections, differing on a state-by-state basis. Bathroom bills are not solely about invalidating transgender people by denying them, in the words of actress and activist Laverne Cox, “the right to exist in public spaces.” They are also about using trans people as political targets to galvanize conservative voters to oppose a progressive and diverse vision of America.

Unpacking Arguments Against Transgender Bathroom Access

As evidenced by states such as North Carolina, South Dakota, and Texas, who have all introduced bathroom bills, two primary arguments are given as to why transgender people should be barred from public facilities that correspond to their gender identities: 1) so-called “bathroom predators” (namely cisgender men) will exploit pro-trans bathroom laws in order to sexually harass or assault women; and 2) trans people themselves are a threat because it is inappropriate for persons with different anatomy to use the same public, gender-segregated facilities.

The “Bathroom Predator Myth”

The “bathroom predator” myth has largely been the most commonly cited media talking point on this issue. This argument is faulty for three primary reasons: 1) In the 17 states that currently allow the bathroom that corresponds to their gender identity there have been ZERO instances of men entering women’s restrooms to harass or assault; 2) the myth promotes false narratives about the realities of sexual violence, as perpetrators are most often someone victims know, not random strangers seeking to opportunistically assault; and 3) gender-inclusive bathroom laws will not make harassment or violence in public facilities legal.

Trans People Themselves Are a Threat

The argument the trans people themselves are a threat is simply misguided, as the transgender community is one of the most vulnerable populations in the United States at present. According to the National Center for Transgender Equality’s 2015 U.S. Transgender Survey Report, the experiences of transgender Americans are characterized by three overarching themes: 1) pervasive mistreatment and violence; 2) severe economic hardship; and 3) harmful effects on physical and mental health due to oppression, discrimination, and lack of access to necessary resources. More specifically, 77% of K-12 students experienced mistreatment at school, 47% reported being sexually assaulted at some point during their lifetime, 30% were fired, denied promotion, or mistreated in the workplace, and 39% reported experiencing significant psychological distress within the past year. The suicide rate for transgender Americans is approximately 9 times the national average, meaning that 40% will attempt suicide in their lifetime. Specifically in relation to bathroom usage, 59% of survey participants reported avoiding public restrooms for fear of confrontation or other problems, while 32% reported limiting the amount they ate or drank to avoid using a public restroom, and 8% reported experiencing a kidney-related problem as a result of avoiding restrooms.

The Problem With How We, as a Culture, View Gender

Bathroom bills such as North Carolina’s HB 2 and South Dakota’s HB 1008, often state that individuals must use the bathroom that corresponds to their “legal sex” (the gender marker listed on their birth certificate) or their “biological sex” (a person’s anatomy or chromosomes). As such bills evidence, there is no universal standard in determining what constitutes “legal” or “biological” sex. The primary reason many balk not only at the right of transgender people to use public facilities, but the existence of transgender people themselves, stems from our culture’s foregrounding of the wrong criteria when defining an individual’s gender. Namely, we see anatomical sex, or an individual’s body, as the valid, authentic, and primary way to assign or determine gender. Gender identity, an individual’s internal or psychological sense of their gender, is located in the brain and is thus seen as secondary, invalid, or “fake,” in part because one’s inner thoughts are not visible to the naked eye, as are genitals.

Put simply, anatomical sex and gender identity are both biological processes (that do not always align, as in the case of trans people, due to a variety of factors), yet we privilege the body over the mind when assigning gender. Instead, we should see gender identity as primary and anatomical sex as secondary. In locating gender first and foremost in the mind, we validate and legitimize the existence of transgender people. Therefore, in instances where we are talking about a person’s “legal sex”—for example, in relation to legislation such as Title IX—the only appropriate response is a person’s gender identity. As Chase Strangio, a staff attorney with the ACLU’s LGBT & AIDS Project, and one of the litigators of the Grimm case, has argued:

“Biology is diverse and complex and when it comes to assigning sex, the only medically appropriate way to make such an assignment is based on the gender the person knows themselves to be… Sex assignment at birth is just that — an assignment of sex made at a moment in time based on the best information available at that time. It does not capture a biological truth beyond the truth of the appearance of one’s genitals at age 1 day.”

5 Things You Can Do

  1. Donate to organizations like the ACLU and GLAAD (the Gay and Lesbian Alliance Against Defamation). The ACLU litigates civil rights cases, while GLAAD works to promote social justice through positive and accurate media representations of the LGBTQ community.
  2. Talk about transgender issues with others, both in person and on social media. Educate yourself and others. Foreground trans people’s experiences by sharing articles written by trans people themselves. Share Gavin Grimm’s story, and use the hashtag #StandWithGavin.
  3. Support trans people’s cultural productions, such as books, podcasts, and films. For example, you can donate to the writer and activist Elliott DeLine’s Trans Book Buddy Program. Through this program, DeLine donates books by transgender authors to transgender readers who would benefit from them. Morgan M. Page, a trans woman writer, performer, and activist, has created a podcast entitled One From the Vaults!, that makes Western transgender history fun and accessible to a general audience.
  4. Research and support the Equality Act, a piece of legislation that would grant full federal equality on the basis of sexual orientation and gender identity. According to the Human Rights Campaign, 71% of Americans support such legislation. Call or write your elected representatives and ask them to support this act.
  5. Learn how to become a “bathroom buddy” via the #IllGoWithYou Ally Project, which teaches cisgender people to support transgender people in bathrooms, including de-escalation strategies in the event of potential conflict.

While we can have different perspectives on a variety of gender issues, the fundamental humanity and validity of transgender people is never up for debate. As James Baldwin said, “We can disagree and still love each other unless your disagreement is rooted in my oppression and denial of my humanity and right to exist.” Transgender Americans, like all Americans, should be able to live with respect and dignity. Using the bathroom that aligns with the gender one knows oneself to be is not merely a matter of comfort or convenience, but a human right.