What is missing from the transgender bathroom debate

Image from Time Magazine

I recently had the privilege of sitting down to breakfast with someone I’d call an “O.G.” ACLU attorney. The ACLU has taken a good bit of heat recently for selectively defending civil rights based on politics and capitulating to the demands and trends set by only particular activist groups. I would not have included this man in that generalization. This is a man I deeply respect and a person I have looked up to for years. So it came as somewhat of a tragic surprise for me to learn that he too, like many so-called “progressives,” falls into the camp of those who brush off concerns about the deterioration of sex-based modesty and privacy in America. This is a trend that is coming at the American people, especially our children, in a fast and furious way. To say that it’s “taking on steam” would be a gross understatement. 

With a significant rise in children who identify as transgender, there are broad concerns about how we should accommodate those children. For many students who are beginning to transition, using the facility that matches their new gender is critical in demonstrating to the world who they really are. This of course means sex-integrated bathrooms and locker rooms. Many are aggressively in favor of that, and many are aggressively against that. The reasons a person might be against sharing a bathroom with someone of the opposite sex are obvious. So when someone airs those concerns and they are subsequently shamed as bigots, TERFs, or transphobes, I first “consider the source.” That’s what my mom always suggested I should do when I find someone’s outlook utterly perplexing or disagreeable. But here’s the thing: as I am considering the source of these retorts, sometimes they are coming from people I find to be intelligent and reasonable. At that point, my next thought is inspired by Will Farrell’s character from Zoolander: “I feel like I’m taking crazy pills!”

For all Americans alive today, and going back as far as the late 1800’s, sex-segregted bathrooms have been the rule, not the exception. The first law requiring sex-segregated bathrooms passed in Massachusetts in 1887. The Act to Secure Proper Sanitary Provisions in Factories and Workshops required that:

[W]herever male and female persons are employed in the same factory or workshop, a sufficient number of separate and distinct water-closets, earth closets, and privies shall be provided for the use of each sex and shall be plainly designated, and no person shall be allowed to use any such closet or privy assigned to persons of the other sex.

The basis for the Massachusetts law was likely aimed at keeping women, who were newly entering the public workplace, from disturbing men in the spaces they had previously enjoyed without the interruption of women—who, at the time, were often seen as “dramatic” or even “hysterical.” Regardless of the genesis of sex-segregated bathrooms, it is clear that Americans have grown up, for several generations now, in a society where the norm is that you go to the bathroom and change in locker rooms with humans who share your same anatomy. This is why I find it utterly confounding that concerns over sex-integration of bathrooms and locker rooms are often brushed off and even ridiculed by prominent leaders and thinkers as frivolous. 

In 2020, the Supreme Court handed down its decision in Bostock v. Clayton County, which held that Title VII of the Civil Rights Act protects employees from being discriminated against not only on the basis of their sex, but on the basis of their sexual orientation and gender identity as well. Despite the Court’s explicit statement, “we do not purport to address bathrooms, locker rooms, or anything else of the kind,” the Bostock decision has served as the justification for allowing, and in some cases even requiring, Federally-funded entities such as schools to allow individuals to use the bathrooms and locker rooms that match their gender identity. 

In my work as an attorney for the Foundation Against Intolerance & Racism (FAIR), I regularly hear from parents of children who are serving as some of the first test subjects in this arena. Recently I heard from a mother of a 14-year-old girl in Illinois who now goes to great lengths to avoid using the girls bathroom and locker room at her school. Beginning at the start of this school year, her school reports that it is required to allow transgender girls (i.e., humans who have a penis), to use the girl’s bathroom and locker rooms. The mom I spoke to told me that her daughter is modest and extremely uncomfortable changing her clothes in front of male students, so she tries not to drink water during the school day so that she can avoid using the bathroom. She is also quietly protesting her gym class, sitting on a bench outside school instead of changing into her school-required gym uniform. So far, her school has not relented in allowing male students to use the girls’ facilities. 

Similarly, last year, I spoke to the parents of a new high school-age girl in Texas who faced the same situation. A transgender girl was now being allowed to change in the girl’s locker room following marching band practice. When the Texas girl expressed her discomfort in changing in the same room with a biological male, the school offered a “pop-up” tent she could erect in the bathroom in order to maintain privacy, as there is not a sufficient number of private stalls to accommodate all students. She passed on using the cramped pop-up tent, and opted to go back to her house to change clothes, missing 20 minutes of instructional time each day. 

But perhaps the most confounding situation that has been brought to my attention is one from a nursery school in New York City. The father of a 2-year-old girl reached out for help because he was horrified to learn that as part of the school’s equity and inclusion program, the teachers take the pre-school children to the bathroom in groups of two or three boys and girls at a time because they feel it’s important that the children should experience the anatomy of the opposite sex from an early age. After hearing the father’s concerns about the school’s practices, the school agreed to accommodate his preference that his little girl use the bathroom privately, without other students. 

Some of you are now scraping your jaws off the ground after reading these accounts. Others are applauding the actions taken by schools to meaningfully respect and honor transgender rights. No matter your position on this issue, it should be clear that this is a dramatic shift in our cultural norms. This is why I find it utterly puzzling that concerns about these new cultural norms are often callously dismissed as frivolous and even annoying. 

At the very least, communities should agree to carefully consider these changes, and, if they proceed with them, to have empathy for the people who aren’t fully convinced of their societal benefit. Unfortunately, we now find ourselves not in the land of careful consideration and empathy, but in the land of capitulating to the demands and trends set by a minority of vocal activist groups. 

If our goal is to create a sense of belonging for a small but real group of children who deserve our compassion and empathy, then we should approach it in a way that is feasible and likely to succeed—in a way that does not do those children more harm than good. The threat of harm is very real, and it’s already playing out in many places. Take Loudoun County, Virginia. Now notorious in the gender ideology wars as the place where a rape was perpetrated by a transgender girl who had been allowed to use the high school girls’ bathroom (the exact facts of this situation are somewhat disputed). That horrific event was like a gift to the anti-trans activists—it gave them an excuse to label all transgender girls as disguised rapists. Their fervor was motivated by a hasty rush to undo the modesty-driven cultural norms that had been in place for more than a century and replace them with the new norms of so-called progressivism. The progressive approach  in many school districts has been to go from single-sex bathrooms immediately to sex-integrated bathrooms, rather than to address the advent of one or two transgender students and how best to accommodate them on a case-by-case basis. The response from the anti-trans activists should have been predictable as a natural human response to a significant change occurring practically overnight. 

It is disingenuous to argue that a society with a long history of single-sex facilities can or should easily abandon this standard in an instant. Perhaps in time society will adopt sex-integrated bathrooms and locker rooms once again. If that movement stands a fighting chance of success, it will be in the school districts and localities that are confronting these changes in measured and compassionate ways, that consider the concerns of all involved, not just the loudest in the room.

The opinions expressed here do not necessarily reflect those of the Foundation Against Intolerance & Racism or its employees.

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