Last week, in response to a recent expansion of the Phoenix non-discrimination code to include sexual orientation, disability and gender identity and expression, Republicans in the Arizona Legislature proposed a bill that would essentially criminalize being transgender. The law would require males to use the men’s restroom, and females to use the women’s restroom according to their sex assigned at birth, per their birth certificates. Violators would be charged with a misdemeanor.
With marriage equality slowly creeping up in each state, civil rights advocates are increasingly focused on transgender rights. This proposed criminal law certainly makes salient an important lesbian, gay, bisexual and transgender rights issue: whether transgender persons should be allowed to use the bathroom associated with the gender with which they identify.
For some, the right to use a certain bathroom may seem inconsequential. Bathrooms, however, have always been at the center of civil rights debates. As popular culture illustrates in movies such as “The Help,” the early 1960s saw white people fight to keep black people out of their bathrooms, both publicly and privately. The idea of a black person using a white restroom was viewed as “unsafe.” The justification was that black people carry certain diseases — the biological/environmental attribution argument that we often see conservatives use inconsistently to oppose civil rights for certain groups. This erroneous rationale hid the reality that these laws were based on discrimination and hate, to distinguish whiteness from blackness and to dehumanize black people. Bathrooms have also limited mobility for women and alternatively abled persons.
Today, those who oppose gender-neutral bathrooms for transgender people argue that this would invite sexual predators into the bathrooms of the other sex. In particular, they focus on the safety of women and children, per usual for the anti-LGBT rights folks. Arizona took it one step further, not only opposing transgender access to public bathrooms, but making the use of the “wrong” bathroom a criminal offense. Laws such as the one proposed by Arizona and lack of support for gender-neutral bathrooms, are largely based on misguided assumptions about being transgender, the impact access to public restrooms has on the health and well-being of transgender people and the purpose of gender identity anti-discrimination laws.
For the most part, everyone is assigned a sex at birth, either male or female, typically by a medical doctor, and this is indicated on a person’s birth certificate. In addition, every person also has a gender identity, which is one’s sense of “maleness” or “femaleness.” Gender identity is psychological and emotional, whereas sex is biological. Sometimes, a person’s sex (body) doesn’t quite line up with that person’s gender identity (mind). Typically, these people identify as transgender.
Transgender is a paradigm term used to describe people whose gender identities are inconsistent with the sex they were assigned at birth. Transgender encompasses other identities, such as transsexualism (a desire to surgically alter one’s sex) and intersex (genitals that are ambiguously male or female). Some people are gender non-conforming, that is, some people do not meet society’s expectations of female femininity or male masculinity.
The medical and psychological epistemic communities have concluded that changing a person’s sex in order to be consistent with that person’s gender identity is medically necessary, vital to that person’s psychological health and often times life-saving. This is called “transitioning,” a long process where transitioning men and women begin to live their lives in accordance with typical “maleness” or typical “femaleness,” more or less.
For transgender people, the medical and psychological communities conclude, access to the bathroom that is consistent with one’s gender identity is a very important part of the transitioning process. It’s also important for people who are gender non-conforming. Laws that prohibit discrimination based on gender identity allow transgender people access to this basic human activity in a way that is consistent with their medical needs, not to mention consistent with respect for their dignity.
In addition, the purpose of the gender identity and expression protections are to allow these people access to public accommodations such as restrooms without fear of discrimination. In the places where these protections exist, it hasn’t been the case that males who identify as men are increasingly using women’s public restrooms, or vice versa, much less preying on women and children in public restrooms.
Despite some differences, it’s important to recognize the continuities with respect to the issues faced by the LGBT community and the issues faced by other discriminated groups in the past. For transgender and gender non-conforming people, bathrooms are an important part of their health and well-being. While we are fortunate to attend a university and live in a state that both include gender identity in their anti-discrimination policies, many bathrooms on campus and in the community remain gender-specific. The recent activity in Arizona is a reminder that the bathroom battle is far from finished; it’s a reason to remain mindful of other people’s struggles and to appreciate the privilege of being able to use a bathroom without fear, something many people have perhaps never considered.
