Students in the summer offering of my Introduction to American Politics course were assigned to write their final paper on one of three contemporary political debates in the United States – immigration reform, college affordability, and transgender bathroom policy. You can find the discussion about immigration here and on college affordability here.
This week, my students discuss transgender restroom policy. When students in the class were asked in a survey whether people who are transgender should be allowed to use the public bathrooms of the gender they identify with or should they have to use the public bathrooms of the gender they were born as, 60% said they should be allowed to use the public bathrooms of the gender then identify with, 23% said they should be allowed to use the public bathrooms of the gender they were born as, and 17% reported not knowing. As you’ll see from the commentary below, there is much more nuance than these numbers suggest.
A Middle Ground: Undue Hardship Analysis
Response 1, Jennifer P.
Much debate has arose regarding transgender students using restrooms and locker rooms. The middle ground approach differentiates between public restrooms and school locker rooms, where there’s unavoidable public nudity (Park, 2015). This contrast is consistent with public opinion in three swing states: Florida, Ohio, and Pennsylvania. According to the Quinnipiac University Poll, voters in two of the three states support transgendered people having the right to use public restrooms consistent with their gender identity, but all three states oppose mandating public schools to extend the same right to transgender students in locker rooms (Brown, 2016).
The U.S Departments of Education (ED) and Justice (DOJ) recently issued a joint letter stating they now treat a student’s gender identity as the student’s sex for purposes of Title IX. They define gender identity as “an individual’s internal sense of gender” regardless of education records or identification documents indicating a different sex (Gupta, 2016), and discrimination based on students’ transgender status can preclude schools from receiving federal funding (Gupta, 2016 page 2). Ten states, including Ohio, are in opposition to these executive agencies over transgender students’ use of locker rooms. Even further, a lawsuit has been filed and these states claim that the federal agencies have overstepped their boundaries by attempting to rephrase the term “sex” to include “gender identity” under federal civil rights laws (Bydalek, 2016).
The two main issues at play in this debate are the separation of powers and federalism. The states argue that the executive agencies have violated separation of powers by usurping Congress’ authority to legislate in this area. The lawsuit alleges their actions “impose new obligations without Congressional authorization” and “effectively amended the relevant statutory language via unilateral administrative action” (Bydalek, 2016 page 21). In addition, their threat to withhold federal funding raises questions of federalism. The lawsuit alleges, “Congress may use its spending power to create incentives for [entities] to act in accordance with federal policies. But when ‘pressure turns into compulsion,’ the legislation runs contrary to our system of federalism” (Bydalek, 2016 page 30).
The solution to this issue does not lend itself to a one size fits all approach, but transgendered students should be given reasonable accommodations similar to the process under the Americans with Disabilities Act (ADA), as the middle ground approach suggested (Park, 2015). Granting access to facilities is only the beginning, but safeguarding all students’ privacy interests is the harder part. The “significant guidance” issued by ED and DOJ only says “a school may make individual-user options available to all students who voluntarily seek additional privacy,” but cannot require transgender students to use them (Gupta, 2016 page 3). However, one student should not be able to require a school to completely remodel a locker room at significant cost to the school just to accommodate that student’s privacy. The ADA requires employers and employees to go through an undue hardship analysis (U.S. DOJ, 2008), and it could be adopted to this issue. Therefore, the transgender student should be able to request an accommodation, such as shower curtains, and the school can either provide those that are reasonable or alternatively prove that the student’s suggestion creates an undue financial hardship.
Another benefit of using the reasonable accommodation and undue hardship analysis is that the issue of federal funding could be used as an incentive instead of a threat. The media often highlights unfunded mandates in the context of education, but the ED and DOJ letter amounts to a defunded mandate. According to the lawsuit, direct federal funding “amounts to 9.3% of the average State’s total revenue for public elementary and secondary schools, or $1,128 per pupil” (Bydalek, 2016 page 16). The potential loss of this money would be devastating to a school. Instead of threatening the loss of money, ED and DOJ should encourage additional dollars to be available for the schools to provide reasonable accommodations to transgender students.
Transgender students’ use of locker rooms is a great example of how one issue involves the interplay of many themes, as evidenced here by the separation of powers, federalism, and the right to privacy.
Upholding Rights and Ensuring Privacy
Response 2, Illya S.
Without a doubt one of the main issues of contention leading up to the current presidential election has been that of transgender students in locker rooms. Every now and again the issue is brought into the public spotlight when stories such as the one at Fremd High School in Palatine, Illinois emerge. Parents and students sued the United States Department of Education after they passed Title IX as well as the local school district for its modern implementation. These groups saw Title IX’s attempts to eliminate discrimination based on sex as an unlawful attempt to force people born to one sex to use lockers rooms that they thought weren’t meant for their sex (Eldeib & Rhodes, 2016).
There are those who argue that the United States has spent a great deal of time striving for equal education for all students, but this equality still is not applied to transgender students in many cases. In the case of the Palatine High School they claim that the district treated the student differently from their peers and that this is, by definition, discriminatory (Kiesling, 2015). As a result of being treated differently, the student fell behind in sports and was singled out by other students in person and on social media (Kiesling, 2015). Another byproduct of such treatment could lead to students feeling unwelcomed and unincluded since they are the target of abuse both verbally and physically (Beemyn, 2005). Furthermore, there are those who argue that denying the rights of transgender students on the basis that others feel uncomfortable with their presence in a locker room is an unacceptable reason (Park, 2015).
On the other end of the debate there are those trying to consider how people might feel if they don’t understand the context of a situation. As an example, some women might feel uncomfortable or perhaps even unsafe if they think a heterosexual man is changing in the same room as them, when the individual in question is actually a transgender woman (Rhoads, 2016). There are also concerns of heterosexual men taking advantage of the laws to partake in voyeurism (Rhoads, 2016). Furthermore, during a suspected situation there is hesitation that it might be discriminatory to question a transgender person on their motives (Rhoads, 2016).
In my perspective, it is extremely important to uphold the rights of transgender individuals and allow them to use the locker room of their choosing while also ensuring that others feel safe in locker rooms. This position can be seen as a middle ground because it attempts to accommodate both transgender students as well as other students who have concerns about their own safety. A solution which could benefit everyone would be to create gender-neutral restrooms and locker rooms not only for transgender people to use but also anyone else looking for some privacy. Although some people may see this as discriminatory since it technically is special treatment, it would be an efficient way for people to feel more comfortable while changing at school. Several universities already have “family” changing rooms that can be used by transgender people at sports facilities (Beemyn, 2005). I also think that if the federal government were to mandate that new sports facilities were required to include a set amount of these special changing rooms transgender people could comfortably change in privacy if they so wish.
Another potentially suitable solution would be to allow students to chose whether or not to change before and after gym class and/or other extracurricular activities. This would ensure that transgender students who might feel uncomfortable undressing in front of peers have the option to not change while at school. This would effectively protect transgender students who can be made to feel awkward in situations or worse yet, endangered (Beemyn, 2005). It would also strike as a compromise for those who don’t feel comfortable with transgender people sharing a locker room with them for safety reasons (Rhoads, 2016). I believe that these two possible ideas will help in accommodating both cisgender and transgender students.
Safeguarding Against Abuse
Response 3, Noah W.
Access to bathrooms of the gender that transgender individuals identify with has been a very hotly debated topic. Some states have attempted to enact laws requiring students to use the bathroom that corresponds with their biological sex. Others have allowed students to use the bathroom of the gender that they identify as. This policy can cause a backlash from parents concerned about their children’s privacy. In the New York Times Room for Debate series, Pauline Park and Mara Keisling both weigh in on the transgender bathroom rights issue. Pauline Park recognizes that the issue requires “negotiation and compromise” (Park, 2015. ¶ 1) and asserts that “requiring completion of sex reassignment surgery… would effectively discriminate against most transgendered people” (Park, 2015, ¶ 3) while still understanding that relying solely on self-identification may not be the best policy. She goes on to say that in regards to privacy, “it is transgendered people themselves who are usually the most concerned” (Park, 2015, ¶ 5). Mara Keisling focuses primarily on a case where a transgender girl was allowed to use the women’s restroom but was forced to use a gender-neutral locker room separate from the locker room that her girls’ sports team uses. Keisling believes this to be discrimination, saying that “her segregation publicly reinforces her presumed differentness” (Keisling, 2015, ¶ 3) and says that the girl’s needs are “simple: the school’s acceptance of her as a girl without the stereotypes and fears too many well-intentioned people still hold” (Keisling, 2015, ¶ 5). In this way, Keisling recognizes that those on the other side of the issue are well-intentioned, but that singling out a transgender student when it comes to locker room access is “separate, unequal, and illegal” (Keisling, 2015, ¶ 3).
My position on the issue of transgender bathroom rights is that forcing transgender students into the bathroom corresponding to their sex is dangerous and singling out transgender students by providing gender neutral bathrooms is harmful and impractical. According to an article by UWIRE, “gender dysphoria causes extreme anxiety and is triggered by a variety of things” (UWIRE, 2016, ¶ 3). Forcing transgender students into bathrooms that correspond to their biological sex could bring about or worsen bullying from other kids. This could be even worse if the student was undergoing hormone treatments that would alter their physical appearance. It also leads to a question of what to do if a student has undergone sex reassignment surgery. Being forced to use the bathroom of that student’s birth sex could lead to physical abuse and molestation. Transphobic violence has been found to be a major issue in some countries, where “85 percent of lesbian, gay, bisexual and transgender (LGBT) students experience homophobic and transphobic violence” (States News Service, 2016, ¶ 2).
Even if gender neutral bathrooms are provided, the issue is not solved. Many schools and universities don’t have readily available gender neutral bathrooms and locker rooms readily available. Even if these bathrooms were provided, they can be very inconvenient to those forced to use them. In Keisling’s article, it was found that “separate access has caused her to be late for class repeatedly, and she has even been singled out in social media attacks” (Keisling, 2015, ¶ 3). In spite of gender neutral bathrooms, transgender students have been bullied because the school system has singled them out and reinforced the idea that they are different. This can trigger feelings of gender dysphoria and depression. According to a UNESCO report, “in Australia there was a high correlation between victimization and lack of concentration in class, lower marks, and attendance for transgender youth” (States News Service, 2016, ¶ 7). In singling out transgender students, schools put them at a disadvantage in their academic careers that can cause them a great deal of trouble later on. Due to the harsh effects that forcing the wrong bathrooms onto transgender students can have, it seems clear that they should be able to use the bathrooms of the gender that they identify as.
What about you? What are your thoughts on transgender bathroom policy in the United States? Leave your comments below.
*Responses shared with written permission from the authors. Replication in any form, without permission from the author, is prohibited.
- Response 1
- Brown, P., Malloy, T., Smith, P. (2016, June 23). Voters Divided on Transgender Rights, Quinnipiac University Swing Poll Finds. Retrieved from https://www.qu.edu/news-and-events/quinnipiac-university-poll/2016-presidential-swing-state-polls/release-detail?ReleaseID=2361
- Bydalek, D., Peterson, D. (2016, July 08). In the United States District Court for the District of Nebraska. Retrieved from http://cdn.thinkprogress.org/wp-content/uploads/2016/07/08141800/Nebraska-Trans-Suit.pdf
- Gupta, V., Lhamon, C. (2016, May 13). Dear Colleague Letter on Transgender Students. Retrieved from http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf
- Park, P. (2015, November 05). A Middle Ground Can Be Found on Some Transgender Issues. Retrieved from www.nytimes.com/roomfordebate
- U.S. Department of Justice Civil Rights Division. (2008, October 09). Americans with Disabilities Act. Retrieved from https://www.ada.gov/qandaeng.htm
- Response 2
- Beemyn, B. G. (2005, July 1). Making Campuses More Inclusive of Transgender Students. Journal of Gay & Lesbian Issues in Education. doi:10.1300/J367v03n01_08
- Eldeib, D., & Rhodes, D. (2016, May 5). Lawsuit filed after transgender student gets locker room access in Palatine. Chicago Tribune. Retrieved July 28, 2016, from http://www.chicagotribune.com/news/local/breaking/ct-transgender-palatine-high-schoollawsuit-met-20160504-story.html
- Kiesling, M. (2015, November 5). For Transgender Students, Disparate Treatment is Discrimination. The New York Times. Retrieved July 9, 2016, from http://www.nytimes.com/roomfordebate/2015/11/05/transgender-students-in-high-schoollocker-rooms/for-transgender-students-disparate-treatment-is-discrimination
- Park, P. (2015, November 5). A Middle Ground Can Be Found on Some Transgender Issues. The New York Times. Retrieved July 9, 2016, from http://www.nytimes.com/roomfordebate/2015/11/05/transgender-students-in-high-schoollocker-rooms/a-middle-ground-can-be-found-on-some-transgender-issues
- Rhoads, S. E. (2016, June 6). The Transgender Locker Room. The Weekly Standard, 21(37).
- Response 3
- “SCHOOLS FACE HOMOPHOBIC AND TRANSPHOBIC VIOLENCE PROBLEM.” States News Service 17 May 2016. Academic OneFile. Web. 10 July 2016. Retrieved from http://go.galegroup.com.proxy.lib.ohio-state.edu/ps/i.do?id=GALE%7CA452548354&v=2.1&u=colu44332&it=r&p=AONE&sw=w&asid=72a4a5753df115b7b18964ef82b49121
- “Transgender bathroom bill.” UWIRE Text 1 Mar. 2016: 1. Academic OneFile. Web. 10 July 2016. Retrieved from http://go.galegroup.com/ps/i.do?id=GALE%7CA445036213&v=2.1&u=colu44332&it=r&p=AONE&sw=w&asid=5234301a04f7d1534f51d5e5d70a2cd2