School Bathrooms Are the Next Battleground in the Fight for Transgender Rights

A slew of policies, laws, and court rulings try to specify which restrooms trans kids should use.

(Photo: Lucy Nicholson/Reuters)

Jan 21, 2015· 4 MIN READ
Nicole Pasulka is a writer and reporter who lives in New York City. She has written for Mother Jones, BuzzFeed, The Believer, and the New York Observer.

The front lines in the battle for transgender equality have been established—and they're right in front of the public restroom door.

Last week, West Hollywood passed a law requiring that all single occupancy public bathrooms be gender neutral—meaning that the restrooms can be used by men, women, or gender-nonconforming people. Philadelphia and Washington, D.C., have similar rules. Members of the transgender community have fought hard for these accommodations, and they celebrated the policy changes publicly.

For many, this isn't just about bathrooms; it's part of a larger movement to recognize transgender people according to their gender identities. These bathroom rules allow people to move more freely through the world with less fear of being called out or harassed.

But almost as soon as news breaks about some public spaces becoming more inclusive or accessible, a story of a policy or rule that restricts where trans people can be follows. The issue of bathrooms and gender has become a lightning rod in the debate over trans rights. The most recent backlash is a law that would severely limit how some students use the bathroom in Kentucky schools.

After a Louisville school let a transgender girl use the girls' restroom, Republican state Sen. C.B. Embry proposed a bill that would require schools to separate students based on "biological sex" whenever they use restrooms or locker rooms. The bill also declares that "a student encountering a person of the opposite biological sex" in such a place will have cause to sue the school for $2,500.

Embry's proposed law—which has attracted a lot of attention but has received little support in the legislature—would define a transgender person's gender by his or her "biological sex." However, advocates and members of the transgender community argue that trans people should be able to use the bathroom according their gender identity, which they consider to be a person's true gender.

Increasingly, nondiscrimination laws have supported this idea, which makes the Kentucky bill look particularly regressive. The law Embry wants to pass would make it legal to target and discriminate against transgender people in bathrooms. This is illegal in more than 15 states, where anti-discrimination laws protect transgender people's rights to equal access to public accommodations like schools and bathrooms.

"There is no rule that a person must look a certain way to use a certain restroom," writes the national LGBT organization Lambda Legal in its bathroom rights guidelines. "This kind of 'gender policing' is harmful to everyone, whether a transgender person, a butch woman, an effeminate man, or anyone dressed or groomed in a way that doesn't conform to someone else's gender standards.”

Dr. Judy Chiasson, Los Angeles' program coordinator for Human Relations, Diversity, and Equity, found no instances of inappropriate behavior or children pretending to be transgender in California public schools in the month after the state passed a law allowing transgender people to use the facilities and participate in school programs according to their gender identities.

However, a lot of the anxiety about transgender people using the bathroom can be traced back to one widespread but incorrect assumption about gender identity. Many people believe that because a transgender woman—someone who was considered a boy at birth yet now lives as a woman—used to live as a boy, she is technically male. Or, conversely, because a transgender man—someone who was considered a girl at birth and now lives as a man—used to live as a girl, he is technically a woman.

The federal government and a growing number of state legislatures and courts have affirmed trans identities. "Courts have increasingly found that discrimination against transgender people is sex discrimination, so it's not acceptable to institute different kinds of bathroom rules for transgender and nontransgender people," the Lambda Legal guidelines continue.

That is what happened at a New Jersey school last December after administrators tried to force 16-year-old Rubin Smyers to use a unisex bathroom when he came out as transgender.

The bathroom that Smyers was required to use was farther away from his classes and made him feel singled out. He opposed the school's decision and petitioned other students and their parents for their support. Garden State Equality, an advocacy organization for the LGBT community in New Jersey, then informed the school that, according to New Jersey’s nondiscrimination law, transgender students can use bathrooms according to their gender identities. In the end, Smyers was allowed to use the boys' bathroom.

In Maine last year, the state's highest court awarded a transgender girl $75,000 after finding that her school violated her rights when it required her to use a staff restroom. And in 2013, a Colorado court found that a school discriminated against a transgender girl by not allowing her to use the girls' restroom.

Though people like Embry worry that transgender kids pose a safety risk to other students, the reality is that it can be dangerous for transgender women—who look, dress, and live as females—to use the men's bathroom.

After an Idaho transgender woman named Ally Robledo was charged with trespassing in 2013 for using the women's room in a grocery store, she told reporters she went there because she didn't feel safe in the men's room.

"When I did use the male's [restroom], there would be people that would harass me in school. I would feel really embarrassed, and there were times when I found myself in a lot of dangerous situations.... I'm a female trapped in a man's body; it's natural for me to go to the ladies' room," Robledo said.

Embry says he doesn't want to encourage harassment or violence, but his bill fails to recognize that transgender women are women and transgender men are men. Though the state senator opposed a bill that would have banned bullying based on gender or sexual orientation, he told U.S. News and World Report that he doesn't believe LGBT students should be harassed at school. "They're certainly welcome to live their lives as they choose; if they want to dress as the opposite sex and the school is OK with that, that's fine," he said.

Still, some have suggested that rather than protecting all students, Embry's bill would make transgender children—who are already at greater risk for violence and rejection—more vulnerable.

"If we say that you are so different that we really cannot find a way to accommodate you that integrates you into the rest of the student population, we're saying that you're so different that you have to be isolated, that you have to be pushed out to the margins—you get the special accommodations," Fairness Campaign director Chris Hartman told WKYT. "That's what endangers students like this."