Battle of the Bathroom

18 minute read

Bathroom humor still works in politics, at least for Dan Patrick, the lieutenant governor of Texas. A talk-radio host with Lone Star swagger, he took the stage at the 2016 Republican state convention in May to the sounds of a slide guitar, packing one-liners like slugs in a six-gun. “It is great to be in the largest Republican convention on the planet,” he began, “and not one man wants to use the ladies’ room.”

Laughter and applause filled the room as Patrick paced with a microphone, chambering another round. “Now just so you are not confused, when you go to the restroom, the M does not stand for ‘make up your mind,’ and the W does not stand for”–here he paused, changing his voice to a higher register–“‘whatever.'”

The people Patrick had labeled “confused,” the ones he did not see in the room, are a small fraction of humanity, perhaps three-tenths of 1% of adults, according to one study. They are men and women, boys and girls, who identify with a gender that does not line up with the sex that is recorded at their birth. For decades they have lived, sometimes literally, in shadows, the subject of taunts, the victims, disproportionately, of homelessness, violence, depression and suicide. But that shadow is fading, and the evidence is everywhere.

In the wake of a Supreme Court ruling legalizing same-sex marriage, the social battleground has shifted to new frontiers. Stars like Caitlyn Jenner and Laverne Cox have brought a pop-culture spotlight to trans issues, and corporate leaders have closed ranks to protect their transgender employees. With the power of federal purse strings, the Obama Administration has declared that all students must be treated equally regardless of gender identity, defining innate feelings of male and female identity as legally protected facts.

“We see you, we stand with you, and we will do everything we can to protect you going forward,” U.S. Attorney General Loretta Lynch told transgender Americans on May 9. It was a remarkable statement from an Administration that less than six years ago lifted the ban on gays and lesbians serving openly in the military, but continued to ban transgender soldiers from publicly identifying themselves.

This rapid remaking of the social fabric was the reason for Patrick’s jokes, and the fuel for a furious debate pitting state leaders against the federal government. Weeks earlier, the schools superintendent in Fort Worth had issued a new policy, in line with federal guidelines. It said, for instance, that students once raised as boys who identified as girls could pee in the bathroom that matched their gender identity. Patrick demanded that the superintendent resign and vowed to pass a new state law to overturn the guidelines within a year. “It’s common sense,” he told the Republican convention, to more cheers. “It’s common decency.”

By this, he meant his focus was not the interests of a much-maligned minority but the perceived threats, as yet unfounded, to the majority. “We don’t want any child for any reason to ever be harassed or bullied,” Patrick argued, despite his introductory jokes. But, he continued, women need protection in the bathrooms, the changing rooms, the shared showers. “We will stand up for women and girls in America and in Texas,” he thundered to more cheers. “You deserve your privacy, you deserve your dignity, you deserve your comfort and your safety when you go to the ladies’ room.”

President Obama and his aides use those same words–dignity, safety–to describe the fight from the other side. And so in a divided country, the social battle lines have been drawn once again in our most private of public places. State legislatures have been besieged, and school committees have split. Pastors have become politicized in the pulpit, and the gay-rights lobby has abandoned its past hesitancy to embrace the transgender cause. Courtrooms are filling with legal motions that are certain to end up at the Supreme Court. The fight–political and legal, personal and collective–is just getting going. “JFK wanted to send a man to the moon,” Texas Governor Greg Abbott tweeted on May 17. “Obama wants to send a man to the woman’s restroom.”

Like all great political battles, this one is distinguished by the decision on both sides to commit loudly and completely, to elevate the issue and to force it on the American public. For Obama, in his final months in office, the late embrace of the issue as a civil rights crusade is a nod toward the Martin Luther King Jr. bust he keeps in the Oval Office. For opponents, the fight confirms their worst fears of a faceless government elite, reaching into their communities, schools and toilets to endanger their children and threaten their values.

As so often happens, the thousands of transgender Americans who struggle daily to find acceptance may soon become figureheads in a fight bigger than their fate. The 2016 battle over bathrooms is, after all, about far more than public facilities–it’s about gender roles, social change, federalism, physical danger, political polarization and, most strikingly, a breakdown in the ability of anyone in this country to speak across our divides, or appeal to common humanity. “This will not stand in America,” Patrick argues of the 21st century bathroom wars. “And this is going to probably define who the next President is.” Before that, the nation’s own character will be put, once again, to the test.

The public bathroom may be shared, but it is no common space. It is a rare place of forced vulnerability, where our insecurities and excretions mix with the sounds and smells of strangers, where our individual and collective fears can linger. From the founding of America’s sex-specific toilets in the late 19th century, they were symbols for concerns unrelated to their immediate purpose. “One might think that it makes perfect sense, that bathrooms are separated by sex because there are basic biological differences,” says Terry Kogan, a professor of law at the University of Utah who has studied the topic. “That’s completely wrong.”

The first state to require separate toilets was Massachusetts in 1887, and the reason was anxiety over women entering the workplace, in the large factories of New England. Policymakers in the 19th century argued that women were weaker and needed protection from the harsh realities of men’s spaces. The early ladies’ rooms were equipped with curtains and chaise longues. Within 30 years, almost all states had followed suit, with plumbing codes enshrining basic standards for His and Hers.

Fear of change was once again in the air, when toilets returned as symbols of vulnerability for young women. “Will the white girls be forced to take their showers with Negro girls?” asked a prosegregation Arkansas newspaper ad in 1957, before going on to peddle false medical claims: “Because of the high venereal-disease rate among Negroes … [will] white children be forced to use the same restrooms and toilet facilities with Negroes?” When federal troops arrived bearing bayonets, Arkansas Governor Orval Faubus claimed without evidence that federal soldiers “had invaded the privacy of girls’ dressing rooms.”

Decades later, the bathroom battle shifted to feminism, the next frontier of social change. The specter of unisex stalls became a weapon for opponents of the Equal Rights Amendment, a proposed constitutional change to ban discrimination based on sex. Over the objection of legal scholars, anti-ERA activists renamed the proposal the Common Toilet Law. One activist in New York in 1976 even dressed as a unisex outhouse, with the words his and hers crossed out and replaced by theirs.

Today, the fears can be found expressed in the tapes of local school-committee meetings across the country. In Gloucester, Va., local officials in 2014 allowed Gavin Grimm, then a sophomore, to use the boys’ room at his request. Labeled a girl at birth, he identifies as a boy, and it had become awkward in public settings when he appeared in the girls’ stalls. “People would get confused, or they’d walk in behind me and think they had stepped into the boys’ room, or they’d say I needed to leave,” Grimm remembers.

When parents found out about the arrangement, they protested to the Gloucester County school board, filling the official record with warnings of the coming sexual predation of young women. “A young man can come up and say, ‘I’m a girl. I need to use the ladies’ room now,'” testified one outraged man. “And they’d be lying through their teeth.” Another mother argued, “To combine male and female in the same bathroom and same gym room, you are opening up a door that is going to be disastrous.”

Grimm describes the ordeal of watching a public debate over his genitalia as “nightmarish,” filled with “untellable embarrassment and humiliation.” When the committee rescinded his bathroom rights, sending him to a converted utility closest to relieve himself, he sued, eventually winning a ruling from the Fourth Circuit Court of Appeals. The judges found that the Department of Education was reasonable in ruling that “sex” in public law does not mean just the marker on a birth certificate, but also gender identity. Of the idea that he or anyone else would use his accommodation to attack others, Grimm remains mystified. “I don’t know of many people who would endure the humiliation and ostracization of changing your name and changing your gender presentation and asking people to refer to you with pronouns and mannerisms of the opposite sex just so they could go into a restroom and ogle men or women,” he says.

Yet the specter of a sexual predator abusing transgender-friendly laws continues to frame the debate. Conservatives in Houston successfully overturned a city equal-rights ordinance in 2015 with a ballot measure passed after television ads re-enacted a hypothetical scene in which a faceless man barges in on a schoolgirl in a bathroom stall. “No men in women’s bathrooms” was the simple and effective campaign slogan.

In Chesapeake, Va., news of Grimm’s courtroom success pushed pastor Irvin “Jack” Cunningham, leader of the 750-active-member Bible World Church to preach about the issue in one of his first politically focused sermons, which have included calls to register to vote. “I have a 5-year-old granddaughter, I have a 35-year-old daughter. I just simply don’t want anybody that is male going in the restroom with my family,” says Cunningham, 58, who has counseled people through sexual abuse. “We just no longer have the luxury of sitting back and doing nothing.”

The FBI and local law enforcement do not keep consistent stats on the number of crimes committed in public restrooms, so there is no way to track every claim. “What we’re talking about is probably some sort of assault, maybe some sort of low-level kind of voyeurism,” says Jeffrey Ian Ross, a criminologist at the University of Baltimore. “That stuff goes underreported all the time.” But there is not yet any anecdotal evidence that trans-friendly rules have been abused by predators, or that incidents of violence or sexual assault have increased. For decades, men have sometimes been caught and prosecuted for entering women’s restrooms or dressing rooms, either in drag or dressed as men, to watch or film women. The laws and rules requiring sex separation did not prove a deterrent in those cases.

The Los Angeles Unified School District, a community of 550,000 students, has allowed transgender students to use the bathrooms they identify with since 2005. “I have never had misconduct by a transgender student. A lot of fears people expressed, we have never realized those, we have never seen them,” says Judy Chiasson, who runs the district’s office of human relations, diversity and equity. “We’ve been doing this for 11 years. It works.”

The burden for transgender people when it comes to bathrooms is less disputed. A 2016 analysis of a survey of more than 2,000 transgender college students found the rate of suicide attempts increased 40% among those who said they had been denied access to a bathroom. In a separate survey of 100 transgender people in Washington, D.C., 70% said they had been denied restroom access or harassed, and 58% said they had avoided going out in public because they feared being able to find a bathroom. “At some point they had just decided it wasn’t worth it to go out in public and have to deal with the bathroom situation,” says Jody Herman, a scholar at UCLA’s Williams Institute, who authored the study.

But the discomfort can go both ways. Since March, a sign has been posted outside the locker room at a New York City parks-department swimming pool on the Upper West Side of Manhattan. It says that “individuals cannot be asked to show identification, medical documentation or any other form of proof or verification of gender” and that anybody “who abuses this policy to assault, harass, intimidate or otherwise interfere with an individual’s rights” can be prosecuted.

In late April, when a girls’ swim team encountered a bald person with facial hair and a waist towel leaving the ladies’ shower, they brought their concerns to the swim coach, according to Ellen Vandevort, a mother of one of the girls. The coach suggested that they use the family changing room instead, and an employee at the facility later told TIME that the individual in question appears to present as a man. “Our hands are tied,” the worker said, which is not exactly true. Anyone can report concerns to police if there is even suspicion of criminal intent or wrongdoing.

But no words were exchanged at the pool, because even on the Upper West Side of Manhattan, a liberal bastion, the ability to communicate about these most basic cultural changes has broken down. Community activist Mel Wymore, a transgender man who helped restore the pool in question, says more dialogue will be the solution. “I’ve never heard of anyone [in the trans community] who wants to make other people uncomfortable,” he says. “It’s an uncomfortable time, and we have to be patient with each other.”

While local communities struggle with the changes, a parallel transformation has taken place in the upper ranks of liberal activists. Trans individuals for years were often an afterthought to LGBT groups, since the issues were thornier, given public ignorance or indifference, and the population in question far smaller. Additionally, the same-sex marriage fight raised huge amounts of money, while transgender causes have been less of a fundraising boon.

But in the first months of this year, when lawmakers in 17 states proposed laws that would restrict transgender people’s access to public washrooms, LGBT-rights groups have mobilized costly state campaigns. Only two states, Mississippi and North Carolina, have so far passed such measures, and the latter has been hit by a deluge of boycotts and threats that stretches from Bruce Springsteen to the NBA, in addition to a civil rights lawsuit brought by the U.S. Department of Justice. On May 18, more than 200 corporations announced they were filing a friend-of-the-court brief asking North Carolina to end its restrictions. Its author: Ted Olson, U.S. Solicitor General under George W. Bush. Even the NAACP joined gay-rights advocates at the statehouse to protest the law, which also could limit protections against racial and sexual discrimination.

On March 31, Chad Griffin, an activist who helped lead the fight for marriage equality and is now mentioned as a possible Cabinet Secretary in a Hillary Clinton Administration, met with North Carolina’s Republican Governor, Pat McCrory, who had signed the bathroom bill. “What you do in reaction to this will not just stain your legacy, it will be your legacy,” Griffin says he told the governor. “Don’t threaten me,” the governor responded. For his part, McCrory said the meeting was direct. “Chad was extremely assertive,” he said. With Griffin at the meeting was Candis Cox-Daniels, a trans employee of American Airlines. Cox-Daniels has been told by her company to telecommute from home instead of coming to her office at Raleigh-Durham International Airport because state law barred her from using a women’s bathroom, a guaranteed right under the company’s corporate policy. “He didn’t say very much,” she recalled of her conversation with the governor, who faces a difficult re-election fight this fall. “He never actually addressed any of the valid and legitimate arguments that were being brought up.”

But other groups are fighting back, far more forcefully. With same-sex marriage settled and the legal fights over wedding-cake bakers fading from the headlines, social conservatives have latched onto the bathroom fights, especially after the Department of Education in May sent strict guidelines about restroom use to schools across the nation. “This particular move by the Obama Administration has registered a level of concern among evangelicals that I have not seen with anything else,” says Russell Moore, the president of the Southern Baptist Convention’s public-policy arm.

At the Republican National Committee, there is hope that the issue could mobilize voters in November. “People are certainly talking about it, every meeting I am going to,” says Chad Connelly, the RNC’s director of faith engagement. “I think it’s the whole government-intrusion idea, trying to take over something that ought to be decided at the state level.”

The top of the ticket, however, is more ambiguous. Donald Trump, in his trademark way, has been on all sides of the issue, at once expressing outrage over the federal guidance from the Department of Education while inviting Caitlyn Jenner to use the ladies’ room at Trump Tower during a recent visit because he did not see it as a big deal. He has also chastised North Carolina for its bathroom ban, calling it unnecessary and pointing to the corporate backlash as evidence that it was hurting the state. “People go, they use the bathroom that they feel is appropriate,” he said. “There has been so little trouble.” Clinton, for her part, has promised to carry on Obama’s efforts should she win the White House.

Underlying the battle over toilets is a complicated discussion about what it means to be transgender and why it happens. As a matter of science, the issue is largely settled. The transgender experience is not—-as Texas’ Patrick joked–a matter of choice. No transgender American stands before the W on the restroom door and thinks, Whatever.

“What we have to accept is that the duality–male or female, which we see as a very clear dichotomy–it’s a little bit more complicated,” explains Catherine Dulac, a Harvard professor of biology. The official diagnosis is gender dysphoria, and it is recognized by the American Medical Association, the American Psychiatric Association and major medical institutions. As with same-sex attraction, there is no treatment to reverse it, and many of the negative effects arrive not from the personal experience but from the social reactions to it.

For many in this debate, however, these facts are hogwash, peddled by liberal academics with different value systems. “Children have vivid imaginations. This is nothing but an adult agenda being pushed on the backs of innocent children,” says Nancy Stacy, a school-board member in Marion County, Fla., of the transgender experience in school. She recently voted to deny access to a transgender student who wanted to use the boys’ bathroom. For her, the act of changing bathroom rules to match the preference of a student is just the start of a slippery slope. “That would be like me saying, ‘Oh, a child believes she’s Cinderella today, so we’re going to have a horse and carriage on the playground.'”

Though Stacy’s position carried the day in Marion County, the district is now threatened with both legal action and a cutoff in federal funding from the Obama Administration. In the meantime, Jayne Ellspermann, the principal of West Port High School in the county, has remained focused on making all of her students feel they belong. As with racial desegregation before, she believes the transgender bathroom fight will pass with time. “They’re really community and society issues that we navigate through our schools,” she says. “I know we’ve made it through what happened previously, and I know we’ll make it through this historical change as well.”

Until the school board voted against a policy of accommodation, she says, her school never had any issues with transgender students’ using the bathrooms where they felt most comfortable. And since the vote, the degree of attention and sensitivity she brings to children struggling with gender identity has not changed. Though all bathrooms are not accessible, there remains an official recognition of gender difference that was unthinkable when the parents of these students went to school. “The bottom line is that each student needs to feel secure and comfortable in the school that they’re going to attend,” Ellspermann says. “We can’t leave out the marginalized students.”

Never mind the fights to come. That sentiment alone is a sign of how much our nation has already changed.


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