Bathroom Battle: States Grapple With Transgender Rights

As the Supreme Court mulls gay marriage, states tackle a different question: which bathrooms should transgender citizens use?

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Toby Talbot/ AP

A sign marks the entrance to a gender neutral restroom at the University of Vermont in Burlington, Vt., Thursday, Aug. 23, 2007.

What do you call it when a person enters a bathroom but the sign outside doesn’t match the sex listed on his or her birth certificate? Disorderly conduct, according to a bill offered earlier this month by Arizona state Rep. John Kavanagh. But the measure sparked outrage in the LGBT community, which saw discrimination against transgender citizens. Kavanagh responded with a revamped, more limited version, which protects businesses that bar such practices from civil or criminal liability. After a contentious seven-hour hearing on Wednesday dominated by opposition to the proposal, a House panel voted along party lines to approve it.

As the Supreme Court considers same-sex marriage, and with gay couples enjoying more rights and protections than ever, pitched debates in state capitals are a reminder that transgender rights remain unclear and controversial. Of the roughly 9 million people in the U.S. who identify as lesbian, gay, bisexual or transgender, according to a 2011 study, roughly 700,000 say they are transgender.

One reason that transgender rights remain murky is because the American public is still coming to understand who they are: a survey released in 2011 showed that 3 in 10 Americans cannot identify what it means to be transgender and dictionary definitions aren’t cut-and-dry. (The Oxford English Dictionary’s rather tortured entry: “a person whose identity does not conform unambiguously to conventional notions of male or female gender, but combines or moves between these.”) Confusion or discomfort about where gender lines are drawn make bathrooms a perennial hot-button, because those are the only places most people are self-segregating based on their gender in an average day.

The fight for transgender rights has lagged behind that of gays and lesbians. But the measures on state dockets aren’t all a blow to the movement: while activists consider Arizona’s “bathroom bill” a setback, other states are considering expanded protections for transgender people, who are hopeful their cause may be headed for the kind of mainstream acceptance enjoyed by the gay rights movement.

A Democrat-backed California proposal would allow students to take part in sex-segregated school programs based on their gender identity, irrespective of the sex on their records. So, a student born male but who identifies as female could play on the girls’ tennis team and use the girls’ locker room. Opponents say “gender identity” is too broad to serve as an absolute guide and warn that such a bill could leave school facilities and programs at risk for abuse. In the District of Columbia, council members are considering a proposal that would make it easier for citizens to change the sex listed on their birth certificate, requiring only an affidavit signed by a doctor rather than a court order.

The second version of the contentious Arizona bill is nearly identical to one defeated in the Maine legislature two years ago. Rep. Kenneth Fredette, the sponsor of that bill, says that the legal boundaries of what it means to be transgender are still “emerging” and that communities need to have conversations about how to deal with sex-segregated facilities and programs without “throwing darts at people for being bigots because they ask questions.” He says the purpose of his bill was to protect businesses from being sued. “It wasn’t any attempt to discriminate against anybody,” the Republican Minority Leader says.

Transgender rights attorney Lisa Mottet disagrees. She says that such bills are “mean-spirited,” back-handed ways to marginalize transgender individuals. Arizona residents are “being told that the cities they live in cannot protect them from discrimination in bathrooms, and that’s a terrible message to send to the community,” she says. Mottet, who works for the National Gay and Lesbian Task Force, argues that while statutes regulating bathroom access are rare, non-discrimination laws inherently protect the right of a transgender patron or student to use the bathroom of their choice. Sixteen states and the District of Columbia have passed such non-discrimination laws, as have hundreds of colleges and towns.

Mara Keisling, executive director of the National Center for Transgender Equality, says that labeling all single-stall bathrooms as unisex is one easy fix, though that sidesteps broader questions about the status of transgender people, when it comes to bigger bathrooms—or prisons or homeless shelters or high school sports teams. “Transgenders simply want to be themselves and not hide their entire lives,” Mottet says. “The least we can do as a society is say we respect that.”

96 comments
hypotheticalforu
hypotheticalforu

Hypothetical question:  A woman is a rape victim (of a male assailant) and wants to go into a bathroom without a penis in there.  Does she have the right to do that? 

planthaver
planthaver

@hypotheticalforu most of the time, the girl's not going to tell if anyone has a penis. Nobody's doing a dick search the minute they walk into a bathroom. This also implies that most trans women choose to keep their penises, which isn't always the case.

BenevolentLawyer
BenevolentLawyer

Dropped in to provide a quick update: Sorry it might be full of typos because I have a lot to write fast, and I am typing pretty quickly. I might look it over later if Ican stomach any further attacks, and correct it.

Here is the update--Yesterday, I saw the individual that caused me a lot of angst, last week, by displaying his male genitalia in the locker room-- by walking up and down and making a spectacle of himself. Yes, he was back to the women's only locker room. Since he had already told me he was trying to make a point-the last time, when he started marching up and down again, male genitals swinging, I decided to find out what point he was making this time. He and I spoke again. He told me the following:

1. He is not transgendered. He is inter or intra sexed. I am not sure which term he used.

2. He said he decided to put in breast implants, as he explained, since though he was born male because he felt  strong pull to his feminine side as well. He says he also feels male, but wants to be both male and female.

3. He says we can refer to him as he or she because he is both. He might choose one later but now he feels more male because he is male most of the time for work, family etc.

4. He is not on hormonal therapy and will not consider it because he works as a man and is happy with it. He said he likes the flexibility he has obtained from taking male and female sexual identities. He also said he likes being strong and lean, benefits not provided by estrogen. This remark about estrogen being weak apparently, to him, was knee slapping funny. Not to me.   

5. His point this time was that he could walk around naked in the locker room with "noone daring to bother him."-his words not mine, since as he said had more testosterone than all of us women in the locker room put together.

6. He said that in other gyms, when he walked around naked in men's rooms, he had been threatened by some of the men.

7. He said he finds both sexes equally sexually attractive. For now, he likes women more but it usually changes, according to him.

8. I asked him if he was using our locker room with his male or female persona. He said, he was using it as a man and a woman.

Finally, he told me there was nothing we (the women in the locker room) could physically do to him except complain like mice< his words. He confirmed that he could not walk around naked in the male locker room but could do so in the womens locker room. I guess it is because as he said, we could do nothing to stop him. And he was right, even though he is a somewhat older guy in his fifties, he is still, as he said, stronger than us women. He said he could be whatever he chose, whenever he chose and it was too bad if the women in the locker room felt upset. The men concern him but not the women. Meanwhile he is  a man too. He is a bully, and invading our privacy rights, in the womens locker room, with his arrogant and unconscionable conduct.   

That's all.

7

PS: On another note. This is a magazine blog. We should be able to share and discuss different opinions without being insulted or accused of using multi aliases. Since I started this discussion, I had "Jmac" on another page call me crazy, ask me to take Midol (Midol is medicine generally used by women during their periods), told by two other people that I am another female lawyer (who by the way frpm what I have found,deserves compassion not mockery) that uses this site, since they stated I write like her-even though I have  only one pseudonym and have said so (BTW, "JordanGwendolynDavis" below, has a similar writing style as I do (I think)--and I am not her either). My identity was stolen for a while during the election cycle, I reported it, and since that time, as far as I know, no other person uses this moniker other than me.

Well, all these attacks just because I have a passionate different view, these deriding anyones charrater is very hurtful and makes me quite sad. I shared my passionate opinion as many folks do, and should not be attacked and my character questioned in the manner it has been by a few folks. I will always have my own views on issues. This site used to be much more accommodating of different perspectives on an issue, and I do not have to be "Jmac" who positions are based as I noticed, I think, on following the dominant view, without  providing any original opinions.         

Arguing different view points should always be welcome. But, Even now, I wonder if reading articles here and posting my views it is worth subjecting myself to the  character attacks from some on Swampland. I think it is worse because those who have attacked me are people I have always shown respect, and even liked. 

Hope everyone had a nice Easter. Have a nice week everyone.



Irony
Irony

How about we, as a culture, collectively get over our phobia of basic biology and come to the realization that it does not matter which facility they use. A transgender person who uses the female restroom is not going to "infect" it with maleness or vice-versa.

Seriously, it seems like so many grown adults need to go back to kindergarten and read "everybody poops".

N_Marie
N_Marie

This is probably going to be shot down as a dumb question. But, if a law passes to allow transgender or transsexual individuals to  use the bathroom facility of their choice - What is to prevent a sex offender from taking advantage of this? 

As it stands now, a person who is OBVIOUSLY a man dressed as a woman will be stopped from using a women's bathroom.  I said obvious because some men do look like females. If a law passes to allow transgender individuals access to an otherwise prohibited area, what protective measures are in place to stop a sexual assault? 

If a sexual predator were able to gain better access to potential victims simply by claiming to be transgender or transsexual, what preventative protective measures will be taken? In places where there is limited security, like a rest stop or even an Sports facility where there is sometimes 2 entrances into the same bathroom - what protection is there? 

I hear a lot about protection for transgender individuals, what about protecting  the rights of individuals who just want to use the facility dictated by their birth sex and not their mental sex identity? 


snukb
snukb

@N_Marie Well, first of all, trans people already do have this right. This law is attempting to take it away. If you can cite me even one instance of a man pretending to be a trans woman to access a woman's space, then please do. There is no evidence that this has ever happened. This fear is simply not valid.

On the other hand, there are hundreds, if not thousands, of stories each year of trans folks who were assaulted in restrooms, and who were denied access to restrooms (despite it being a protected right). I understand your concern, but it's simply a false fear. Whereas on the other hand, if a trans woman is forced to use the men's room, she faces the very real threat of verbal harassment and abuse, or even physical or sexual assault. You cannot deny these people safe places to pee simply because of unfounded fears.

bobell
bobell

@N_Marie Sorry, but if a man wants to rape a woman in a restroom, he can already do so.  He just needs to pick his spots carefully. I don't think loosening up on who goes where is going to make much of a difference. I'll be happy to see the guy fry in hell, but short of armed guards in restrooms there are limits to what one can prevent.

Life is very easy when everyone has to act according to their birth gender and can't even develop a same-sex romance.  That's how it was in this country fifty or so years ago.  I suppose there are those who think life was better then, and I'm not going to argue the point. But life is now a lot more complex, with racial and ethnic and now gender diversity. You need to learn to live with it -- or move to some isolated spot where people continue to ignore it.

So take your choice. But don't expect the world to turn back half a century because it makes you uneasy.

Andrashocker
Andrashocker

@TIME @TIMEPolitics If you have a willy you can use the stand up urinal in the boys bathroom, otherwise, sit down on the girls loo.

StrayedoggAgain
StrayedoggAgain

@TIME I wouldn't be surprised if Transgenders sue the clothing industry for the rights to bras, panties, and female garments!

socialnn
socialnn

@TIME @TIMEPolitics If Americans still can't grasp gay marriage, they're really going to have a hard time with the transgender issue.

JordanGwendolynDavis
JordanGwendolynDavis

This is not about men being able to use a women's room or to enter a women's facility, rather, it's about ALL WOMEN being able to enter a women's facility, no matter if they have the birth defect that can only be corrected through gender reassignment surgery or what their genitals look like.

Furthermore, I would like to expose "bugbrennan". Her name is Catherine Margaret "Cathy" Brennan, an attourney for Hudson Cook in Hanover, MD. In addition to her MD license, she is also licensed to practice in the states of Pennsylvania and New York, and what makes this interesting, was the fact that she could probably clean sweep the mid-Atlantic states, though New Jersey would probably disbar her for the transphobic comments she makes.


She also maintains a blog called pretendbians.com in which she attacks numerous transsexual women, including myself, whom she videotaped without my consent (there's a reason why people who wish to appear in films have to sign a release). She has also travelled out of her way to events to castigate transwomen, and was pictured holding a sign that says "Only Men Rape". Though most rapists are men, is anyone reminded of Mary Kay LeTourneau. Point is, she is stating a legal fallacy here, and for a LICENSED ATTORNEY to say something like that possibly breaches numerous ethics rules.


Furthermore, her advocacy of transgender women using or being placed into men's spaces is a perpetuation of rape culture. While cisgender women have nothing to fear simply by allowing transwomen to be placed or enter women's space, forcing transwomen into men's spaces seeks to expose a vulnerable subset of women to rape. She is a rape apologist, pure and simple, and should never be able to call herself a feminist. In fact, her most recent blog post on "Pretendbians" is called "The Undeniable BUTTHURT of Joy Ladin", implying that she would be delighted if Joy Ladin, a transwoman, got anally raped.

michiko
michiko

The problem with this bill is that it goes beyond those who you would consider as transgender or transsexual and goes to the "cis" gender persons (those who identify with the gender that was assigned at birth).  This means a tall or masculine looking woman is subject to scruitny.  It seems to me the problem with this legislation is the risk of exposure of genitals.  If this is truly the case, as a compromise, I would recommend that Kavanaugh amend this bill to eliminate public restrooms from the legislation and keep it active for showers and locker rooms. (Of course, this idea is still not popular among those in a segment of the "transgender" community who choose not to be under a doctor's care [including those who take self-prescribed hormones] or who cross-dress for sexual fetish)  

Restrooms have individual stalls with doors and the risk of exposure is virtually non-existent. 

I would rather see this bill just die because overall it does promote discrimination.  It would also be another bill that could go to a court case and Arizona is still reeling the expenses of defending SB-1070.  

But those who are transsexual or intersex and have their hormone levels of that of their identified gender are not a threat to anyone.  The best way to identify those who fall under this category is through the gender marker on their US Passport or (in some states, including Arizona) their state driver license or non-driver ID.  Those with their ID matching the gender of the restroom that they are using have a MEDICAL need to be in that space. 

DarrylETMiller
DarrylETMiller

Oops it posted too soon. Meant to say: as for Transgender teens using certain bathrooms and lockerrooms in high school, I'm not sure what the beat answer is. Probably a case by case basis. I understand kids being especially sensitive. However, whatever the solution is we must ensure the Transgender teen is treated fairly and with dignity. They've likely gone through tremendous emotional turmoil that surpasses anything their peers have experienced. It's a cliche, but what this world needs desperately is more love & understanding.

DarrylETMiller
DarrylETMiller

Transgender human beings have faced enough persecution through the ages, made to feel uncomfortable (an understatement) probably more than any other group, including gays. And I grew up gay in small town Oklahoma, so I def know homophobia firsthand. My feeling is by the time we become adults we have had a chance to educate ourselves. In the adult workplace, I totally support a Transgender's right to use the bathroom that matches their gender identity, regardless if they've had the operation. Either way, someone might be uncomfortable. My empathy lies with the person who has been discriminated against their entire life. As for Transgender

jmac
jmac

It's Phyllis Schlafly's worst nightmare.  Remember when she fought against the Equal Rights Amendment by saying it would lead to same sex bathrooms?   Now she won't even know which sex might be in her bathroom (not that she knew before). 

p1970
p1970

Whatever conclusions are reached about bathroom use, the issues should sorted with compassion and recognition of the human dignity of transgender people. A survey released a couple of years ago showed that 78% of transgender people were harassed in school for being transgender, 90% were harassed at work (and 47% were either fired, not hired, or denied a promotion because they were transgender), and 53% were harassed in public accomodations (restaurants, hotels, or airports, for example). These statistics show an appalling level of prejudice toward transgender people. The full survey results can be read here: http://transequality.org/PDFs/Executive_Summary.pdf

sacredh
sacredh

I think one of our underlying problems is that the US is puritanical at heart with a good dose of schizophrenia tossed in for good measure. We use sex to sell everything from cars to clothes and yet people howl if there's a nude beach or a woman just wants to topless in her backyard.

deconstructiva
deconstructiva

As Katy would already know, reporting on transgender issues affects more than bathrooms, but also her work. I found this at GLAAD's website...

According to the AP Stylebook, reporters should "use the pronoun preferred by the individuals who have acquired the physical characteristics of the opposite sex or present themselves in a way that does not correspond with their sex at birth. If that preference is not expressed, use the pronoun consistent with the way the individuals live publicly".

Ohiolib
Ohiolib

I'm pleased we can actually have a discussion about this now. Gay rights are moving along, but this is a reminder that our society still has a way to go for true equality. That said: I think the best way to solve this (right now) is to make it easier to change your legal gender. Getting a signed order from a doctor (or group of doctors) seems a reasonable way to do this.

BenevolentLawyer
BenevolentLawyer

On this issue I am absolutely CONSERVATIVE. If your drivers license says you are a MAN, please use the MALE BATHROOM. This week, I was in the women's locker room at the GYM, and a MAN with breasts and male genitalia joined us in the changing area.

We were aghast and did not know what to do. I think this is TOTALLY wrong. I am sorry if anyone is not certain of their gender, but until they decide, they need to work with what they were born with!! WOMEN have RIGHTS too. And our privacy should NOT be cut into by people trying to make decisions on their sexuality. Your sexuality is a private issue, so do not infringe on my LIFE on account of it.

Many of us complained about that man and he was asked for his drivers license which identified him as a man. We are women, we are generally smaller than men, equal but different. Men who are unsure of their gender assignment and who chose who keep their male organs are biologically men, and until they reassign their gender, should not be in our locker rooms changing with us in the public area. IT IS WRONG!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!    

deconstructiva
deconstructiva

Thanks, Katy. Great work as always ...and this is a different take on equality issues that many don't realize. I think in time gender identity issues will be embraced more fairly just as gender orientation issues are now. For bathrooms, you'll notice that really large places like airports and shopping malls are offering unisex potties in addition to men / women ones, usually labeled "Family Bathroom." The past TV show "Ally McBeal" was waaaaaay ahead of its time by offering true unisex multi-stalled bathrooms (in her office building). Seriously, this is the way to go, but as sacredh notes, we've got a long way "to go". 


On a similar note, at a past job I had worked on construction drawings for the early Hollister clothing stores. The original stores had open "gang" fitting rooms each for boys and girls, no groups of separate fitting rooms. This practice exists in Europe ...but it didn't catch on here. The stores soon went to traditional one-person-for-each fitting room. Callista Flockhart and Ally McBeal ...let alone transgenders... will have to wait for true bathroom equality.


sacredh
sacredh

Thanks for the article Katy. I don't really know what to think about this. Some people are bathroom shy in public facilities even when it's all the same gender. I was at a county fair just 2-3 years ago and the Men's Room had about the worst layout I've ever seen. You walked in, turned a corner and the trough was right in the middle of the room. One wall had stalls, the other sinks and the third had regular urinals. A guy came in with a young girl and was greeted by the site of a bunch of adult men with their junk hanging out. He apologized and said that he couldn't find his wife and the girl really had to go. They were waiting for a stall. It was pretty uncomfortable.