A recent New York Times article discusses the growing trend of public schools allowing the use of restrooms and locker rooms designed for young women by gender declaration alone. The Department of Education, for example, has given a Chicago-area school a period of time in which to accommodate a transgender student, or else risk forefeiting their Title IX funding. According to the article, California, Washington, Colorado, Connecticut, Massachusetts, New York, Maine, and the District of Columbia have policies allowing such use.

According to the article, "Catherine Lhamon, the Education Department’s assistant secretary for civil rights, said it is possible to protect the rights of all students without forcing transgender students to use different facilities." These laws would permit gender identity to determine bathroom use, which would not only allow transgender students, but any student (sincerely or insincerely) professing a gender identity to use the bathroom of their choice. In other words, anyone of any sex could use any bathroom or locker room. The department store Target has already put such a policy in place. Do you agree with this change? If so, why? If not, why not and what would your alternative recommendation be? If you have or were to have a school-age daughter in these circumstances, how has/would your family react?


Full Citation for this Article: Editorial Board (2015) "Readers' Puzzle for Fall 2015: Transgender Use of Women's Restrooms/Locker Rooms in Public Schools," SquareTwo, Vol. 8 No. 3 (Fall 2015), http://squaretwo.org/Sq2ArticleReadersPuzzleWomensRestrooms.html, accessed <give access date>.

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COMMENTS: 4 Comments

I. Michelle Brignone

I find it interesting that no transgender men are clamoring to use male bathrooms and locker rooms. Once again, biological males are being privileged at the expense of women and girls.

As a woman, I am well aware of the danger women face in general but particularly in public places that are shielded from public view, like a restroom. On more than one occasion I have been followed to the restroom by creepy men who were prevented from doing me harm only because other people intervened. Violence against women in public restrooms is prevalent. Predators will not think twice about pretending to be a transgender person to gain access to victims as evidenced by Jason Pomares, Norwood Smith Burnes, and Taylor Buehler.

As a rape survivor recently wrote, “it is nothing short of negligent to instate policies that elevate the emotional comfort of a relative few over the physical safety of a large group of vulnerable people…I’d much rather risk hurting a smaller number of people’s feelings by asking transgender people to use a single-occupancy restroom that still offers safety than risk jeopardizing the safety of thousands of women and kids with a policy that gives would-be predators a free pass.” http://thefederalist.com/2015/11/23/a-rape-survivor-speaks-out-about-transgender-bathrooms/

I believe the law can create single stall gender-neutral bathrooms that will keep everyone safe and discriminate against no one. I am not sure what to do about locker rooms, but I don’t want biologically female students to have to shower with biologically male students.


II. Valerie M. Hudson

Who Should Carry the Bathroom Burden?

To say there is divisiveness in the United States among states and municipalities concerning transgender public bathroom use would be an understatement.  When the city of Charlotte moved to permit such use, the state of North Carolina interceded to prevent it.  South Carolina is posed to follow its northern neighbor, and there are similar proposed bills in Illinois, Kansas, Massachusetts, Missouri, Mississippi, Tennessee and Wisconsin.  New York City has recently announced that anyone can use any public bathroom, without showing any documentation; ditto for Seattle.  But Houston rejected that policy position.  School bathrooms are likewise in play; one school district in Illinois has maintained a three-fold set of bathrooms (male, female, and individual), while the Michigan Department of Education has issued a voluntary guidance urging free use of bathrooms by any gender without documentation.

Pollsters have found that while Americans generally back laws banning discrimination against transgender individuals, “opposition increases dramatically when they are told these laws may allow biological men to freely use women's public bathrooms.”  This may not be cognitive incoherence or anachronistic prudishness at work, but rather an understanding that two valued principles are at stake here: non-discrimination and women’s equality.  Americans are savvy enough to understand that there should not be, even must not be, a zero-sum outcome between these two important values.

Take, for example, the case of the University of Toronto.  It implemented gender-neutral bathrooms only to discover women were being harassed by men; it responded by re-establishing single-sex bathroom alongside gender-neutral bathrooms.  This is not incoherence, but rather a response to unpleasant realities indicating women’s equality had been undermined.  Likewise, in 2014 the US Congress passed the Prison Rape Elimination Act, considered a great improvement over the status quo ante; the Act mandates that inmates have “the ability to shower, use the toilet, and change their clothes without being viewed by nonmedical staff of the opposite gender.”  Again, the reality being acknowledged was the problems created when male staff viewed female prisoners in these settings, reflected in the title of the legislation.

In fact, the Prison Rape Elimination Act is a component of an emerging international human rights norm: toilet security.  International development experts have noted the acute insecurity of women deriving from the basic human need to excrete waste: Kathleen O’Reilly, researching women in India, found for example, “access to a toilet does not insure freedom from attack or fear of violence and harassment.”   O’Reilly puts her finger on the cause: “Women’s subordinate position in society is the most basic reason that women cannot use public toilets without fear or experiences of sexual violence or harassment. Fear and stress surroun[d] the use of [these toilets].”  A commitment to women’s equality therefore implies a commitment to women’s toilet security.

And, in the first place, women’s toilet security revolves around the policy of separate facilities, according to UNWomen, the Office of the High Commissioner on Refugees, and UN-Water, with the latter suggesting that maintaining separate facilities “does more to protect against violence than facilities lacking such conditions.”  It’s somewhat ironic, then, that the US is dismantling the basic foundation of toilet security for women just as the issue is coming to the fore as a serious global issue of women’s equality.  For example, a gender-neutral approach to toilets has produced unintended negative consequences for female refugees, where “women identified the latrines and the paths leading to the latrines as areas where they felt the least safe. Women and girls spoke about men hanging around the latrines and nearby paths,” with “men positioning themselves so they could see inside the facilities.”  Females in India, female refugees, female students at the University of Toronto, and female prisoners in the US all seem to be experiencing the same phenomena: male harassment and the threat of male violence.  (I have written more about toilet security here.)

And, indeed, this is a truly global experience.  In terms of harassment, violence, and rape, men worldwide are disproportionately the perpetrators and women disproportionately the prey.  This is certainly not to say that all men are threats to women, but it is true that almost all physical threats to women are from men.  The statistics are truly numbing in their enormity, and the stories heart-rending.  In one 2014 survey in the US, one-third of male college students said they would force a woman to have sex if they could get away with it, while a 2013 Lancet study found that over 31% of Indonesian men had ever raped a woman, and over 14% of those had raped in the past year, and that over the Asian region more broadly, about 24% of men had ever raped.  No matter what region of the world, no matter whether the country is rich or poor, developed or underdeveloped, democratic or authoritarian, women face this reality—and it is a reality.

It seems, then, that the US must find a clear-eyed way to prevent discrimination against transgender individuals (because it’s the right thing to do) while simultaneously providing toilet security for women (because it’s the right thing to do).  Can it be done?

I think it can.  Some might argue the best way to proceed is to transform all bathrooms into single units, and there’s some broad truth in that.  However, the cost of reconfiguring multiple-unit facilities is likely to be quite high.  Even if that route is pursued over time, and I think it should, is there a path that can be taken today to harmonize these two principles of anti-discrimination and women’s equality?

One way to answer this question is to ask who should bear the consequences of the gender-neutral approach to toilets.  Typically, it is women who are asked to bear those consequences, as we have seen in India, among female refugees, among female students, and so forth.  But if toilet security is an important tangible expression of a society’s commitment to women’s equality, that can’t be the right answer for, as statistic after statistic points out, there is real and ample justification for women to expect increased harassment and worse as a result of decreased toilet security.

Perhaps, then, we should ask men to bear this burden instead.  After all, the burden exists solely due to a significant subpopulation of men who view women as prey.  It is only right that we openly recognize this fact and stipulate that the burden be borne by those who create it.  That would be only fair.

How would this work?  Since we currently have a system of two sets of bathrooms, we can use that very system to uphold the two principles of anti-discrimination and women’s equality.  What used to be the men’s bathroom can be transformed into a gender-neutral bathroom dedicated to the principle of anti-discrimination.  Anyone of any gender identity may use that bathroom; it would be completely inclusive.  The second set of bathrooms would be dedicated to the principle of women’s equality through toilet security, and would continue to admit only those without male genitalia.  Indeed, each set of facilities could be renamed after their respective principles, the Anti-Discrimination Bathroom and the Women’s Equality Bathroom, to remind Americans of every political stripe that there need never be a zero-sum outcome when important values are at stake.

And an unintended positive consequence would be one all women could relate with—there would be shorter lines at the bathroom no matter which one they chose to use.

American politics is, in large measure, principle-driven.  America’s bathroom politics would improve by more clearly reflecting that fact. 


III. B. Kent Harrison

I like Valerie’s solution. It solves a lot of problems, like the problems that would arise by requiring individuals to verify their biological gender by DNA or genitalia inspection. (Of course, even with the present male-female separation of restrooms or lockers, predatory males can still raid female facilities, even clearly labeled ones. Single person facilities might provide a little more security, but in our present world, rapes will continue to occur no matter what kind of facilities are available.)

In the meantime, we must deal with the matter of the push for anti-discrimination legislation. I don’t know how to do this except by publicizing the concerns of predation to anyone interested. The situation is not helped by those who claim that reports of predation in restrooms are fearmongering. I am not much of a fan of Ted Cruz, but he spoke out against the North Carolina law, despite a barrage of claims that he is a bigot. Donald Trump seems to favor the anti-discrimination legislation. I don’t know what Hillary Clinton’s position is.


IV. Rachel Zirkle

As a mother, I realize I have a responsibility to teach my children the importance of tolerance, love, and respect for others, which is a responsibility I do not take lightly. Paramount, however, as a mother I have the responsibility to teach my children how to be safe and to advocate for their safety.

While some view keeping restrooms divided by biological sex, instead of gender identification, as discriminatory, for me it is a safety issue. I understand that it may be offensive to assume a person of the opposite sex in a restroom is a danger, but all it takes is one case of abuse stemming from a policy that allows either sex in either bathroom to create fear for one’s safety. It’s like knowing all men are not dangerous predators, yet always walking with my keys in my hand, on hyper-alert, as fast as I can when spotting a man behind me in a dark parking lot. Being prepared for the possible chance of danger is worth being overly cautious all the times danger wasn’t really present.

I’ve taught my five-year old daughter that if she was to go into a bathroom and a male was in there, she should exit the bathroom. The current norm would support that this is abnormal and to proceed with caution (aka get away!). But what if the rules change for public restrooms? How would I teach her to assess the situation – is she at risk from the male in the restroom? Is she safe to enter a stall? Should she wait to use the restroom until he is gone? And if by the time she has processed and answered each of these questions, will it be too late for her to get out if she needed to? And should the burden of knowing when someone means her no harm, only identifies gender differently, versus someone who does mean her harm and is playing the new system, rest on a five-year old girl?

Public schools should consider all students’ safety above all students’ preferences. Single unit facilities are a safe option for all. Providing private changing and showering spaces is a safe option for all. These options may not be popular, but they do eliminate the “insincere” profession of gender identity to gain access to the opposite sex’s bathroom and locker room.  Before policies are put in place, we need to ask ourselves what cannot be compromised – like our children’s safety – and move forward from there.