The new laws and arguments over transgender bathroom and locker room issues are clouded by conflation of gender with sex, school spending priorities, and sometimes religious views.
Schools have become ground zero for clashes on transgender rights. While the issue is not new--Minneapolis passed the nation's first transgender inclusive nondiscrimination ordinance in 1975--the topic did not become national news until 2016. Earlier this year, North Carolina enacted the Public Facilities Privacy & Security Act (better known as HB2), which, among other things, requires transgender students to use only restrooms and locker rooms that correspond to the sex on their birth certificates.
In response, the Obama administration issued guidelines based on Title IX, which mandates that schools receiving federal funds may not discriminate based on a student's sex, including a student's transgender status. The federal guidelines clarify that schools must allow transgender students access to gender-segregated school facilities based on the students' gender identity.
The uproar from conservative public officials was fierce. By June 2016, 11 states had sued the federal government for what they consider federal overreach by taking actions that they believe should be left to individual states.
It is against this backdrop that we write this article: To counter negative reactions to the guidelines, we are responding to seven central arguments by critics against the Obama administration's directive on transgender students and school facilities.
The debate on transgender rights has brought to the fore the important distinction between sex and gender. Sex is biologically determined and relates to one's genitalia and genetics; gender is a socially constructed expression that will vary cross-culturally. Thus, being male, female, or intersex relates to sex, whereas being a cisgender man or woman or a transgender man or woman, relates to gender. While it is true that for most of the population sex and gender culturally match, for a minority of individuals, sex and gender identity are not tightly coupled (Devor, 2007). Cisgender is the word used for people whose gender identity corresponds to their birth sex.
Given that this discussion inevitably challenges the gender binary that permeates contemporary societies, in this article we use "transgender" as an umbrella term that includes individuals whose binary gender identity is the opposite of their assigned sex at birth and also individuals whose gender identities fall within a broad spectrum of gender nonconformity, including people who identify with both genders (bigender), who feel they are a mix of genders (androgynous), and/or who feel their gender shifts freely (gender fluid), among other possibilities. We do this to recognize and honor the vast universe of gender identities that do not fall neatly into society's binary gender system.
7 arguments and responses
#1. Being transgender is a psychological disorder that schools should not enable.
Proponents of this argument believe that being transgender is a mental disorder that should not be normalized by schools. However, mental health professionals do not consider it a psychological problem. The evidence is clear that transgender children experience psychological distress from being perceived as deviant. Transgender children are often harassed, ostracized, and subjected to discrimination, abuse, and physical violence. When schools prevent transgender children from using the restrooms and locker rooms of their choice, they fertilize the stigmatization and victimization that lead to psychological distress. Students may even experience what the American Psychiatric Association has labeled "gender dysphoria" (APA, 2013).
How did gender dysphoria emerge as a label? The American Psychiatric Association has a long history of overclassifying diseases to the detriment of individuals who fall under their shadow. In a move that rectified some of this damage, the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) replaced Gender Identity Disorder (which pathologized being transgender) with gender dysphoria (APA, 2013). Advocates of the transgender community say this reclassification is important in two significant ways: First, this reclassification recognizes that not every transgender person experiences negative feelings related to their gender identity. Their feelings become problematic only when society rejects them with a constant barrage of harassment, abuse, and violence (including not being allowed to enter a facility of their choice). Second, the DSM-5 recommends that people who experience gender dysphoria receive supportive assistance to lessen their feelings of anxiety and isolation.
This assistance may range from intensive aid in transitioning their sex to match their gender to simply allowing individuals to use the restroom of their choice. Allowing transgender students to use the bathroom of their gender identity may decrease the possibility of developing gender dysphoria. As it pertains to schools, when transgender students experience a positive social-emotional environment, they are more likely to thrive emotionally, socially, and academically.
#2. Allowing boys to enter the girls' restroom would compromise girls' safety.
This argument assumes that transgender girls are still boys, and their presence in the girls' restroom puts cisgender girls at risk of sexual harassment. However, reviews of public school records in states that allow transgender people to use the bathrooms of their choice have failed to turn up any examples of transgender students harassing others in restrooms or locker rooms (Maza & Lowndes, 2016). The reason there are no examples is because transgender girls want to be girls, not boys, and are therefore unlikely to want to expose their male genitalia to other girls.
Part of this argument is that the new bathroom policy will provide cover for cisgender boys to enter the girls' bathroom, presumably with harmful, or at least thrill-seeking, intentions. The fact is that no policy or law has ever stopped a person of any sex or any gender from committing nefarious acts in restrooms. Schools must worry about vandalism, drug use, and other illicit activities in restrooms regardless of whether students are using restrooms that match their birth sex. Even if some schools decide to adopt all-gender restrooms, the same regulations and laws that protect any student from harassment and abuse will remain.
If personal safety is the issue, schools should be most concerned about transgender students. Based on a 2013 nationwide survey, 61% of all transgender students were verbally harassed in the previous year, 29% were physically harassed, and 15.5% were physically assaulted (Kosciw et al., 2014, p. 84-86). The sense of insecurity is so intense that the study reports that 75% of all transgender students feel unsafe in school, compared to 26% of cisgender female students (p. 84). The point is not to create a hierarchy of who has been victimized the most but to acknowledge that transgender students experience the most hostile school climate of any student group.
#3. The rights of religious people would be violated.
Some people see the new school restroom and locker room policies as extending special privileges to transgender students and violating a natural order established by God. However, the U.S. is a secular constitutional democracy where laws putatively are decided based on a secular morality rather than religious principles. The founders of this republic were wise to realize that every religion has its own sense of "right" and "wrong," "moral" and "immoral," which often conflict with the beliefs of other religions and nonreligious members of society. Thus, the founders decided that the only way to guarantee freedom of religion and freedom from religion was to prevent future generations from enshrining their personal religious ideals into secular law.
In fact, religious precepts have historically constituted a key rationale for opposing the passage of civil rights legislation. Religion was the basis for unsuccessful arguments defending a ban on interracial marriage, for example, in the 1967 Supreme Court case Loving v. Virginia. The same strategy is being used to fight the legality of same-sex marriage. In all of these cases, the arguments were and are still used by a privileged group to hold onto the status quo that has benefited them. The arguments belie the mindset that "people who don't look or behave like me make me uncomfortable, and I don't want to have to knowingly do my business near them." Ultimately, these attitudes should be exposed as the harmful, degrading homophobic, and transphobic sentiments that they are.
#4. The privacy of nontransgender students would be violated.
Social conservatives claim that students have a constitutional right to bodily privacy that is being breached when transgender students share the same restrooms. While protecting young people's feelings of privacy is of paramount importance for schools, the alleged threat caused by allowing transgender students to choose facilities is nonexistent if only because transgender students historically have shared restrooms with nontransgender students without any discernible problems for nontransgender students.
Calls for privacy are essentially about the risk that students will see others' genitalia or have theirs seen by others. The public nature of these spaces and their purposes increases such risks. Consequently, students' privacy in bathrooms and locker rooms is threatened, not by having transgender students around but by having any students around. Students' concerns with seeing or being seen are valid and should be attended to. However, singling out transgender students unfairly targets these students for a generally universal discomfort with physical bodies. Consider, too, that transgender students have their own wants and needs for privacy, perhaps felt more acutely because they already feel unsafe in school. Ultimately, schools can address privacy concerns easily--by adding separate all-gender, single-occupancy bathrooms or privacy curtains and stalls in locker rooms--without scapegoating transgender youth.
Fears about transgender students infringing on cisgender students' privacy also conflate sexual orientation with gender identity. Advocates of the privacy argument effectively reduce the issue to a fear that desirous biological boys may see girls' genitalia or vice versa. However, gender identification must be divorced from sexual orientation: The former refers to one's internal sense of one's gender, while the latter describes individuals' romantic, physical, or emotional attractions. Transgender people can be gay, straight, or bisexual, just like cisgender people. Since schools have not been in the business of regulating bathroom use by sexual orientation (nor should they be), presuming that transgender youth pose a threat to the bodily privacy of cisgender students demonstrates an ignorance of the differences between sexual orientation and gender.
#5. Transgender students can just use a separate facility, such as the faculty restroom.
While calls to accommodate transgender students with a third, separate bathroom option may have benevolent intentions, this solution is misguided. In this scenario, transgender students lose the crucial opportunity to choose the facility that matches their identity. By directing transgender students to specific facilities, the students are dehumanized by authorities who purport to better understand the needs of transgender youth. This arrangement also creates an unwarranted binary between "trans" and "nontrans" students, causing transgender students to be "otherized" as a separate transgender group. In order to maintain the full humanity of transgender youth, schools should avoid actions that curb students' agency or relegate them to the normative margins.
At a legal level, the courts already have weighed in on the creation of separate bathrooms for transgender individuals in Cruzan v. Special School District #1 (2002). Originally decided by a federal district court in Minnesota and later upheld at the appellate level, the courts denied a teacher's claims of facing religious discrimination and a hostile work environment that she said resulted from having to share a restroom with a transgender librarian. The court noted that if the plaintiff, Cruzan, hoped to avoid her transgender colleague, she already had several unisex bathrooms available to her. This landmark case set an important precedent for school bathroom privacy issues, affirming the rights of transgender employees to use the restroom of their choosing. Symbolically, the decision also reoriented what was considered "normal" for bathroom use. Normal in this case was made to become the provision of special accommodations for cisgender employees who are uncomfortable using the same restroom as transgender people--rather than assigning transgender students and employees to separate restrooms, which would serve only to further their marginalization.
#6. Given the small number of students who are transgender, creating gender-neutral facilities is too costly for cash-strapped schools.
We recognize that the financial realities of many U.S. school systems make school renovations of any kind fiscally challenging. However, as demonstrated by one Los Angeles-area high school, creating a gender-neutral restroom could require as minimal an investment as changing the restroom's exterior sign to say "All-gender restroom" (Kohli, 2016). More complex renovations could begin small, starting with a single gender-neutral restroom or changing room and progressing from there.
On an ethical level, while transgender students are small in number, a mark of a civilized society is precisely its ability to protect the rights of minority and historically marginalized populations. Just as installing physical accommodations following the passage of the Americans with Disabilities Act or integrating schools after the Brown v. Board of Education decision both necessitated financial and logistical considerations, altering school facilities in the service of protecting historically underserved groups justifies the costs. In fact, we see the cash-strapped-schools argument against creating gender-neutral bathrooms as evidence of the need for increased funding for schools. It is not an excuse for denying students the full safety and dignity that schools should provide.
Further, accommodating the needs and rights of transgender students should be accompanied by pedagogical efforts addressed to the entire school community to raise consciousness about the importance of creating a school environment that ensures the safety, dignity, and comfort of all students--particularly in bathrooms and locker rooms.
#7. The decision should be made at the local level, either by the state or local school board.
The state or local school boards have historically controlled schools so the reasoning goes that they should control these decisions as well. The main problem with this argument is that it denies that transgender rights are human and civil rights and as such they transcend state and local jurisdictions (International Commission of Jurists, 2007).
Human rights are accorded to people by virtue of being human. Limiting the choices of transgender and gender nonconforming individuals from accessing a facility of their choice denies them a basic sense of dignity as human beings. Civil rights are accorded to people by virtue of living in a particular nation or state. In the U.S., the federal government has the duty of protecting the rights of vulnerable minorities and ensuring that every individual receives equal protection under the law. Leaving antidiscrimination legislation up to individual states would result in some states universally protecting human rights while others ignore the issue or even legalize discrimination, as in North Carolina's HB2.
Parallel to this discussion is the fact that "states' rights" has long been code for opposing federally mandated human equality measures--from civil rights and racial desegregation to gay marriage (Frank, 2015). The same states that oppose transgender rights also supported the federally mandated but now defunct 1996 Defense of Marriage Act (DOMA), which legalized marriage only between a man and woman. Ultimately, the federal government and the U.S. Constitution serve as powerful guarantors to ensure that the majority does not infringe upon the rights of minority groups.
For schools to meet their obligation to educate all children, they must be equitable, accessible, and safe. What does this mean in practice? The 2016 U.S. Departments of Education and Justice Guidelines on Transgender Students offer a clear route on how to proceed: "A school may provide separate facilities on the basis of sex but must allow transgender students access to such facilities consistent with their gender identity." The guidelines endorse single-occupancy options for "all students who voluntarily seek additional privacy" but prohibit schools from assigning transgender students to a particular facility (p. 3).
The Equal Protection Clause of the Constitution's 14th Amendment makes schools liable for failing to protect the best interests, rights, and safety of their students, including transgender students. Even when states pass oppressive and regressive laws, such as North Carolina's HB2, a growing body of case law shows that schools are legally held to a higher standard. As U.S. Attorney General Loretta Lynch said, this issue is about more than bathrooms. "[It] is about the dignity and respect we accord our fellow citizens ... it's about the founding ideals that have led this country--haltingly but inexorably--in the direction of fairness, inclusion, and equality for all Americans" (2016).
ALBERTO Arenas (Alberto.firstname.lastname@example.org) and KRISTIN L. GUNCKEL are associate professors of education at the University of Arizona, Tucson, where WILLIAM L. SMITH is an assistant professor.
American Psychiatric Association (APA). (2013). Diagnostic and statistical manual of mental disorders (5th ed.). Arlington, VA: American Psychiatric Publishing.
Devor, A.H. (2007). How many sexes? How many genders? When two are not enough. University of Victoria, Canada. http://web.uvic.ca/~ahdevor/HowMany/HowMany.html
Frank, G. (2015, November 10). Anti-trans bathroom nightmare has its roots in racial segregation. Slate. www.slate.com/blogs/outward/2015/11/10/anti_trans_bathroom_propaganda_has_roots_in_racial_segregation.html
International Commission of Jurists. (2007, March). Yogyakarta Principles: Principles on the application of international human rights law in relation to sexual orientation and gender identity. www.yogyakartaprinciples.org
Kohli, S. (2016, April 14). This school is opening the first gender-neutral bathroom in Los Angeles Unified. Los Angeles Times. http://lat.ms/28VZ2is
Kosciw, J.G., Greytak, E.A., Palmer, N.A., & Boesen, M.J. (2014). The 2013 National School Climate Survey: The experiences of lesbian, gay, bisexual, and transgender youth in our nation's schools. New York, NY: Gay, Lesbian, and Straight Education Network.
Maza, C. & Lowndes, C. (2016, April 12). Here's the truth about the anti-LGBT "bathroom predator" myth. Media Matters for America. http://mm4a.org/28P3yyV
Office of the Attorney General. (2016, May 9). Attorney General Loretta E. Lynch delivers remarks at press conference announcing complaint against the state of North Carolina to stop discrimination against transgender individuals. Washington, DC: U.S. Department of Justice. http://1.usa. gov/28Q2uj8
U.S. Departments of Education and Justice. (2016). Dear colleague letter on transgender students. Washington DC: Authors.