transgender bathroom essay

Transgender

Disgust, morality, and the transgender bathroom debate, new research explores attitudes about transgender bathroom bill restrictions..

Posted December 30, 2020 | Reviewed by Gary Drevitch

• Find a therapist who understands gender identity

The past few years have seen a great deal of political energy focused on the question of which bathrooms transgender individuals should be allowed to use when out in public. On the one hand, trans people and their allies argue that trans people should be free to use the bathroom that matches their gender identity , such that trans women should use women’s bathrooms and trans men should use men’s bathrooms. The counterpoint comes from those who argue that a person’s sex, as assigned at birth, should dictate which bathroom they use. In this case, trans men and women are relegated to the bathrooms that match their sex assigned at birth, but often not their current gender identity .

To be clear about what this means, bathroom bill restrictions state that trans women should use the men’s bathroom, which, in most cases amounts to someone visually understood as a woman entering the men’s bathroom. Transgender men, according to bathroom bill restrictions, should be required to use women’s bathrooms, which, in most cases, amounts to someone visually understood as a man entering the women’s bathroom. In fact, the #WeJustNeedtoPee hashtag was created by trans people to visually demonstrate the often striking incongruence between such bathroom bill restrictions and their outcomes.

In general, attitudes about trans people’s access to public bathrooms tend to follow traditional political lines, with liberals being more supportive of access based on gender identity (referred to as support for bathroom access) and conservatives more supportive of access based on sex assigned at birth (referred to as support for bathroom bans, or restricted access). While knowing the average political leanings of people who support bathroom bills that either allow or deny access to bathrooms based on gender identity may be somewhat useful in understanding this issue, given the increasingly polarized state of political opinions, it is important to understand the underlying sentiments generating support for such bills. A recent article by Matthew E. Vanaman and Hanah A. Chapman published in a special issue of Politics and the Life Sciences focused on political attitudes and disgust as potential predictors of bathroom bill attitudes.

In the study, 663 Americans completed an online survey in which they answered questions about their propensity for three different types of disgust, their tendency to be concerned about specific moral values, and their attitudes concerning hypothetical policies concerning transgender access to bathrooms. Participants were randomly assigned to answer questions about bathroom access for transgender men or transgender women.

The researchers hypothesized that there may be three specific types of disgust associated with bathroom bill attitudes: pathogen disgust, sexual disgust, and injury disgust. Theorizing about subtypes of disgust often relates to evolutionary theory, such that it is believed that we feel various forms of disgust as a means of protecting ourselves from potentially dangerous scenarios. Pathogen disgust is triggered by things that we associate with disease. For example, we may reel from someone coughing near us. Pathogen disgust is not necessarily rational: We can experience pathogen disgust in response to things that are not contagious or threatening, such as birthmarks. Sexual disgust refers to being turned off by behaviours that may jeopardize long-term reproductive success, and injury disgust has been theorized to function as a reverse form of empathy, such that instead of feeling sympathetic towards an injured individual, one feels disgusted and repulsed. While transgender people are not a source of disease, have many options for becoming biological parents, and are not any more likely to appear injured than anyone else, the close links between prejudice and disgust could mean that individuals may associate transgender people with one or more of these subtypes of disgust based on the negative stereotypes and connotations they hold about transgender individuals.

Disgust is also closely tied to our moral values. According to Moral Foundations Theory, we make a variety of moral judgments along 5 dimensions of moral values: care/harm, fairness/cheating, loyalty/betrayal, authority/subversion, and purity/degradation. Vanaman and Chapman focused on the dimensions of harm and purity, theorizing that they were most closely aligned with the public debates of bathroom bills. Indeed, those who argue for and against the bills often bring up the potential for harm on either side, either the harm that could be caused to “women and girls” by allowing “men” into women’s bathrooms, or the documented harm that often comes to transgender people in public washrooms.

Participants randomly assigned to evaluate trans women’s bathroom access were asked to rate their agreement with the following statement:

“When it comes to public bathrooms, someone who was born into a male body should be required to use the men’s bathroom, even if they are a woman.”

For the participants randomly assigned to evaluate trans men’s bathroom access, the statement read:

“When it comes to public bathrooms, someone who was born into a female body should be required to use the women’s bathroom, even if they are a man.”

The results of the study supported the notion that individuals who were more conservative were more in favor of bathroom restrictions. (In other words, they agreed more strongly with the above statements.) Turning to the measures of disgust, both pathogen and sexual disgust predicted greater support of bathroom restrictions, but pathogen disgust was by far the strongest disgust predictor. The researchers also found that the more a person was generally concerned with violations of purity, the more supportive they were of the bathroom restrictions. In fact, purity was a stronger predictor than conservatism and concerns about harm. Concern about harm functioned slightly differently, such that the more people were generally concerned about harm and the welfare of others, the less they supported bathroom restrictions.

The researchers concluded that feelings of pathogen disgust and concerns about violations of purity may contribute to people wanting to avoid transgender individuals, and they may see support for bathroom bills as a means of accomplishing this goal. Rationally speaking, however, restricting access to bathrooms based on sex assigned at birth is, if anything, more likely to increase awareness of contact with trans individuals, given that trans individuals would then be forced to use bathrooms that do not match their gender presentations. Ultimately, those interested in increasing support for the rights of transgender individuals to access public bathrooms of their choosing may want to focus on combatting harmful stereotypes of transgender individuals and promoting efforts that underscore the humanity of all trans people.

Vanaman, M. E., & Chapman, H. A. (2020). Disgust and disgust-driven moral concerns predict support for restrictions on transgender bathroom access. Politics and the life sciences, 39 (2), 200-214.

Haidt, J., & Joseph, C. (2004). Intuitive ethics: How innately prepared intuitions generate culturally variable virtues . Daedalus , 133 (4), 55-66.

Karen Blair, Ph.D. , is an assistant professor of psychology at Trent University. She researches the social determinants of health throughout the lifespan within the context of relationships.

• Find a Therapist
• Find a Treatment Center
• Find a Psychiatrist
• Find a Support Group
• Find Online Therapy
• United States
• Brooklyn, NY
• Chicago, IL
• Houston, TX
• Los Angeles, CA
• New York, NY
• Portland, OR
• San Diego, CA
• San Francisco, CA
• Seattle, WA
• Washington, DC
• Asperger's
• Bipolar Disorder
• Chronic Pain
• Eating Disorders
• Passive Aggression
• Personality
• Goal Setting
• Positive Psychology
• Stopping Smoking
• Low Sexual Desire
• Relationships
• Child Development
• Self Tests NEW
• Therapy Center
• Diagnosis Dictionary
• Types of Therapy

It’s increasingly common for someone to be diagnosed with a condition such as ADHD or autism as an adult. A diagnosis often brings relief, but it can also come with as many questions as answers.

• Emotional Intelligence
• Gaslighting
• Affective Forecasting
• Neuroscience

Popular tags

Transgender People and Bathroom Access

Bathroom access for transgender people has recently become a focal point of conversation and debate. This page includes information for transgender people and allies on responding to various questions and concerns regarding bathroom access.

If you need more information on what it means to be transgender, visit Frequently Asked Questions about Transgender People. For more information on how to be supportive of transgender people, visit Supporting the Transgender People in Your Life: A Guide to Being a Good Ally .

Transgender-inclusive policies are not a safety risk.

If they were, we would know by now, as transgender people have been using public bathrooms and locker rooms for decades. Policies that allow transgender people to use the correct bathroom—the bathroom that best matches the transgender person’s identity—do not legalize harassment, stalking, violence, or sexual assault. Those behaviors are, and will continue to be, against the law for anyone, anywhere.

Hundreds of cities, school districts, and 18 states already protect transgender people's right to use restrooms, and none have seen a rise in incidents of people attacking anyone or of people pretending to be transgender in order to get access to restrooms.

Similarly, law enforcement officials and sexual assault advocates in states and cities that already have trans-inclusive policies in place have said over and over: the claim that these policies cause safety problems is absurd and completely false.

Forcing transgender people to use private or separate bathrooms is not the solution.

Offering separate or private bathrooms is a great way to ensure anyone can feel comfortable when they go to the bathroom, whether or not they're transgender. However, private bath­rooms may be unavailable or very inconvenient to access. More importantly, forcing transgender people to use private bathrooms when other people do not have to is isolating and reinforces the idea that transgender people are somehow harmful and should be kept separate from everybody else.

Excluding transgender people from public restrooms does not protect anyone’s privacy.

Lots of people feel uncomfortable in public restrooms, and that was true long before the current public debates about access for transgender people. Transgender people also want privacy in bathrooms and they use the bathroom for the same reason as everyone else: to do their business and leave. Thankfully, bathrooms have stall doors so this is not an issue. Opponents of equal rights are using a desire for privacy—without discussing what privacy truly means—as a way to harm transgender people.

We can have productive and respectful conversations about how to make restrooms and locker rooms more comfortable for everyone, without making it about transgender people.

Allowing transgender people to use the correct bathroom does not mean women will have to share bathrooms with men, or vice-versa.

Transgender-inclusive policies do allow for men’s and women’s rooms, and do not require gender-neutral bathrooms. Instead, transgender-inclusive policies allow all people—including transgender people—to use the bathroom that best matches their gender identity. Those who are living as women use the women’s room, and those that are living as men use the men’s restroom.

For many non-binary people, figuring out which bathroom to use can be challenging.

For non-binary people, who don’t identify fully as either male or female, using either the women’s and the men’s room might feel unsafe, because others may verbally harass them or even physically attack them. Non-binary people should be able to use the restroom that they will be safest in. Learn more about non-binary people at Understanding Non-Binary People: How to Be Respectful and Supportive .

Nondiscrimination laws don’t violate anyone’s religious freedom.

Everyone—including transgender people—should be treated equally under the law. Like all nondiscrimination protections, trans-inclusive policies don’t require anyone to change their religious beliefs: they simply ensure that transgender people can live, work, study and participate in public life according to their identities.

Transgender people may have some legal protections, but still need strong and comprehensive nondiscrimination laws and cultural acceptance to truly thrive.

Laws alone won’t protect transgender people without increased public awareness, outspoken allies, and a society that values the dignity of transgender people.

Stay Informed

Subscribe to our newsletter to get the latest news and opportunities for action delivered straight to your inbox.

The transgender bathroom controversy: Four essential reads

View all partners

Editor’s note: The following is a roundup of archival stories related to transgender issues in education.

On Feb. 22, President Donald Trump’s administration revoked protections allowing transgender students to use the bathrooms of their chosen gender identity . The joint letter from the Justice Department and Education Department rescinds the May 2016 guidelines issued by former President Barack Obama.

This reversal further divides those who contend that these decisions should remain in the hands of individual states , and those who believe that gender identity should be federally protected as a civil right . Also back in the spotlight: questions as to whether transgender students are protected under the anti-discrimination provision of Title IX .

We’ve spoken with scholars from multiple disciplines around the world, who have weighed in on the social, psychological and political issues impacting transgender students. Here’s what you need to know.

Why the bathroom controversy?

In 2014, the Department of Education’s Office for Civil Rights (OCR) issued a document that, among other things, clarified the federal civil rights protections of transgender students:

Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation.

Why then, have school bathrooms become the center of the transgender civil rights movement?

The March 2016 “bathroom bill” in North Carolina played a big part. Banning people from using public bathrooms that don’t correspond to the biological sex listed on their birth certificates, the bill catapulted transgender rights into the national spotlight. Alison Gash, a professor of political science at the University of Oregon, breaks down why there was such a backlash on both sides of the aisle .

At the heart of the debate is a very real fear of violence. Gash explains why transgender students need “safe” bathrooms :

Studies show that transgender students could be harassed, sexually assaulted or subjected to other physical violence when they are required to use a gendered bathroom. One survey… found that 68 percent of participants were subjected to homophobic slurs while trying to use the bathroom. Nine percent confronted physical violence.

And why are bathrooms separated by sex in the first place? To put the gender-neutral controversy in perspective, Terry S. Kogan of the University of Utah writes on the origins of gendered bathrooms , a convention that came about as part of the now-discredited – and extremely sexist – “separate spheres” ideology of the early 1800s.

Trans-inclusive law

While the debate still rages, there are plenty of reasons for hope. Genny Beemyn, Director of the Stonewall Center at the University of Massachusetts, Amherst holds an optimistic view on the eventual legal protections of transgender people :

I believe my research suggests that it is only a matter of time before trans people achieve equal rights and wider social acceptance. While gender is different from sexuality, the history of the struggle for same-sex marriage in this country shows why this will be the case…

Citing a natural demographic shift over time, Beemyn points out that prevalent, accepting attitudes among America’s youth will become the dominant opinion:

Millennials generally see same-sex marriage as a basic civil rights issue and back it by a wide margin. Older generations have also become more supportive during the last decade, but by a much lesser degree. This means, demographically, the number of individuals who are supportive will grow over time, while members of older generations, who are generally less supportive, will pass away.

Meanwhile, we’ve learned that anti-LGBT legislation can harm the economic welfare of America’s communities . And governmental policy and mental health professionals agree that so-called “conversion” and “reparative” therapies can be extremely damaging to LGBT youth .

Acknowledging America’s transgender youth

At the heart of this conversation lies the question of whether children can truly understand gender identity at a young age. Vanessa LoBue, a professor of psychology at Rutgers University Newark, found that before the age of five, children are quite flexible in their ideas of gender, but that by the age of 10 most children have incorporated gender into their concept of identity .

Diane Ehrensaft, Director of Mental Health at the Child and Adolescent Gender Center, University of California, San Francisco, asserts that there’s a double standard when it comes to accepting children’s ability to self-identify gender :

In traditional theories, it is assumed that children clearly know their own gender by the age of six, based on the sex assigned to them at birth, the early knowledge of that assignment, the gender socialization that helps a child know how their gender should be performed and the evolving cognitive understanding of the stability of their gender identity. Yet if a child deviates from the sex assigned to them at birth or rejects the rules of gender embedded in the socialization process, they are assumed to be too young to know their gender, suffering from either gender confusion or a gender disorder.

Despite these debates, there’s ample evidence that transgender students are very likely to be the victims of bullying and violence . While researchers have identified some potential help in the form of gay-straight alliances or media portrayals of transgender youths , policy remains the most likely tool for effecting change.

David Miller, a doctoral student in psychology at Northwestern University, discussed the importance of educational policy in changing attitudes toward and extending protection for transgender students . He referenced studies showing that policy and law can change not just the way people act, but the way people think as well.

Transgender rights across the globe

Trump’s reversal of the guidelines on bathroom use is the latest in an ongoing battle over civil rights for transgender individuals across the globe.

The World Health Organization has stated that it may no longer classify being transgender as a “disorder” in the revised version of its International Classification of Diseases, due for release in 2018. Last year, the British government published a revised policy under which prisons must now recognize and respect inmates with fluid and nonbinary genders . Also last year, the U.N. adopted a landmark resolution on the “Protection Against Violence and Discrimination Based on Sexual Orientation and Gender Identity” – though by a narrow margin.

• Transgender
• Transgender students
• Anti-discrimination laws
• Transgender bathroom choice

Professor of Indigenous Cultural and Creative Industries (Identified)

Communications Director

Associate Director, Post-Award, RGCF

University Relations Manager

2024 Vice-Chancellor's Research Fellowships

• Advanced search

Advanced Search

The Transgender Bathroom Debate at the Intersection of Politics, Law, Ethics, and Science

• Find this author on Google Scholar
• Find this author on PubMed
• Search for this author on this site
• Figures & Data
• Info & Metrics

This article has a correction. Please see:

• Corrigendum - December 01, 2018

The debate over whether transgender individuals should be allowed to use the public restrooms (including locker rooms and changing rooms) that correspond to their currently expressed gender rather than their biological sex has been of recent interest nationally. The first state law addressing transgender access to restrooms was in North Carolina in 2016. This law prohibited transgender individuals from using the restroom that corresponded to their gender. The terms used in the bill and other legal documents caused it to be referred to as the “bathroom bill.” Shortly thereafter, such bills were proposed in many states. Proponents of the bills identify the need to protect public safety by mandating that individuals use the facility that corresponds to their biological sex. Opponents describe such bills as discriminatory. The debate about these bills incorporates ethics-related, legal, and biological arguments. In this commentary, we review the history of such bills in the United States as well as the ethics-related, legal, and evidence-based arguments raised in the debate.

On March 23, 2016, the Public Facilities Privacy & Security Act, 1 also known as “House Bill 2” or “HB2,” was passed by the Republican majority of the North Carolina General Assembly and signed into law by Republican Governor Pat McCrory. 1 This was the first state law in the United States to address transgender access to restrooms. The law stipulated that individuals must use the restroom that corresponds with the designated sex listed on their birth certificates when in government buildings, such as schools. The Public Facilities Privacy & Security Act was passed in response to Ordinance 7056, which was approved on February 22, 2016, by the Democratic-majority Charlotte City Council. 2 The ordinance prohibited discrimination against homosexual and transgender individuals within the city and was scheduled to take effect on April 1, 2016. 3 The most controversial portion of the ordinance allowed individuals to use the restrooms that correspond to their gender identity, rather than their biological sex. In addition to invalidating Ordinance 7056, HB2 also prevented other cities in North Carolina from passing similar ordinances.

The legislative battle surrounding HB2 quickly gained national attention. On May 4, 2016, the Civil Rights Division of the U.S. Justice Department sent a letter 4 to the North Carolina Department of Public Safety stating that, by complying with the law, the Department of Public Safety was in violation of the nondiscrimination provision of the Violence Against Women Reauthorization Act of 2013, 5 Title VII of the Civil Rights Act of 1964, 6 and Title IX of the Educational Amendments of 1972. 7 A similar letter was delivered to the President, Board of Governors, and General Counsel of the University of North Carolina (UNC) system. 8 On May 9, 2016, Governor McCrory, North Carolina Senate leader Phil Berger, and North Carolina House Speaker Tim Moore filed lawsuits against the Justice Department 9 seeking a ruling that HB2 was not discriminatory and did not violate federal law. 10 In response, the Justice Department sued Governor McCrory, the North Carolina Department of Public Safety, and the UNC system for breach of federal civil rights laws. 11

On August 26, 2016, U.S. District Judge Thomas Schroeder issued an injunction that prevented enforcement of HB2 within the UNC system until the Justice Department's case against North Carolina was resolved. This was in response to a lawsuit filed by Joaquín Carcaño, a transgender man who is an employee at UNC's Chapel Hill campus, along with several other plaintiffs. 12 Following protests and boycotts of the state by a variety of business and trade organizations, which cost North Carolina nearly $400 million in revenue, 13 an effort between Democratic leaders in Charlotte and Republican state lawmakers was launched to repeal HB2. This effort required that the Charlotte City Council repeal Ordinance 7056, which also included nondiscrimination ordinances not involving transgender individuals. In return, the state General Assembly would repeal HB2. Although the Charlotte City Council repealed Ordinance 7056, the effort to repeal HB2 initially stalled when Republicans in the General Assembly insisted on a six-month cooling-off period, during which local governments would not be able to pass new ordinances regulating access to restrooms. 14 Because Democrats in the General Assembly refused to accept this condition, HB2 remained in effect.

Although at least 15 state legislatures considered bills similar to HB2 in 2016, none of them became law. 15 Eleven states filed suit against the Obama administration concerning the Department of Justice's new federal guidance on the right of transgender students to use the restroom consistent with their gender identity. 16 On February 22, 2017, the Departments of Education and Justice informed the U.S. Supreme Court that the Trump administration was instructing schools to cease following the guidance issued by the Obama administration concerning this matter. 17

On March 6, 2017, the United States Supreme Court stated that it would not hear the case of G. G. v. Gloucester County School Board . 18 , 19 This case considered whether Mr. Grimm, a transgender male, could use the men's restroom at his high school. Instead, the Supreme Court vacated and remanded an earlier appeals court decision in favor of Mr. Grimm. The lower court will reconsider this case, taking the new guidance from the Trump administration into account.

On March 30, 2017, North Carolina's newly elected governor, Roy Cooper, signed House Bill 142 into law after its passage by the state legislature. 20 Because this bill repealed HB2, transgender individuals no longer have to use restrooms in government facilities that match the sex on their birth certificates. However, House Bill 142 also grants the North Carolina General Assembly exclusive power in regulating access to multiple occupancy restrooms and changing facilities. It also prevents local governments from passing nondiscrimination ordinances until December 1, 2020.

Although activists have been advocating for national nondiscrimination laws for lesbian, gay, bisexual, transgender, and queer (LGBTQ) individuals for over 30 years, none has been passed. 21 In fact, 12 states have recently passed laws removing antidiscrimination protections for LGBTQ persons, which in some cases include legislation for nondiscriminatory restroom access. 22 Currently, 18 states and the District of Columbia have legislation that prohibits discrimination against transgender individuals in public accommodations: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. 23 , 24 However, as of February 18, 2018, bills aiming to limit restroom access based on sex have been introduced into 19 state legislatures: Alabama, Arkansas, Illinois, Kansas, Kentucky, Minnesota, Missouri, Montana, New Jersey, New York, North Carolina, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington, and Wyoming. 25 , 26 Most of these have failed to become law. However, bills are still under legislative consideration in six states 25 ( Table 1 ).

• View inline

Bills Currently Under Consideration in State Legislatures That Seek to Restrict Restroom Access Based on Gender

• History of Sex-Segregated Restrooms

The first sex-segregated restrooms date to the 1700s in Paris. 27 In America, sex-segregated restrooms date to 1887, when Massachusetts enacted the first law mandating that workplace toilet facilities be separated by sex. Over the next 30 years, all other states adopted similar laws.

Contrary to widespread opinion, the rationale for sex-segregated restrooms is not rooted in biology and anatomical differences. According to Terry Kogan, the laws mandating sex separation “were rooted in the ‘separate spheres’ ideology of the early nineteenth century that considered a woman's proper place to be in the home, tending the hearth fire, and rearing children” (Ref. 28 , p 5). At that time, the legislature was developing protective labor laws for women. The separation of restrooms was an extension of these special protections for women. The concept of sex-specific areas was evident in public transportation, where public space was reserved for women (e.g., the ladies' car on railroads). 28

Kogan argues that the creation of sex-separate restrooms arose from the philosophical belief that women need protective havens in the dangerous public realm. In his article, he outlines four justifications for separating public toilets: the sex-separated water closet as a haven to protect the weaker body of the woman worker; the sex-separated water closet as necessary to provide workers with sanitary toilet facilities; the sex-separated water closet as a space to protect a worker's privacy; and the sex-separated water closet as a space to protect social morality. 28

Today, sex-segregated restrooms are universal and expected. Although gender equality has changed the view of a woman's “proper place,” there remains a notion that women need to be protected. As our society's understanding of gender and sexuality evolves, we have to consider whether sex-separate restrooms are justified.

• Rationale for Gender-Neutral or Gender-Inclusive Restrooms

Historically, transgender individuals have been expected to conform their behavior to their anatomical sex; however, this notion is discriminatory. Transgender individuals report frequent harassment specifically related to restroom use. According to the 2015 U.S. Transgender Survey, more than half (59%) of respondents avoided using a public restroom in the past year because they were afraid of confrontations or other problems they might experience. 29 Nearly one third (32%) of respondents limited the amount that they ate and drank to avoid using the restroom in the past year. During that time, respondents reported being verbally harassed (12%), physically attacked (1%), or sexually assaulted (1%) when accessing a restroom.

Today's society is faced with the question of whether transgender individuals should be expected to conform their behavior to anatomical sex. A growing understanding of transgenderism, including an evolution from a psychiatric illness (gender identity disorder), has led to different perspectives on the expectations of transgender individuals. The rationale for providing gender-neutral or -inclusive restrooms is simple: such facilities would allow transgender individuals' acceptance as well as equality.

• Potential for Abuse of More Permissive Restroom Entry Laws

Resistance to allowing certain individuals to use restrooms consistent with their gender identity has centered around three primary arguments. The first of these is that an individual's gender identity is determined by their anatomical sex and individuals who claim a gender identity that is inconsistent with their anatomical sex have a mental illness. The second of these is the belief that transgender individuals are at increased risk of committing sexual assaults, possibly secondary to perceived mental illness. This is typified in a 2016 comment by David Omdahl, a Republican member of the South Dakota Senate, who stated about transgender individuals, “I'm sorry if you're so twisted you don't know who you are—a lot of people are—and I'm telling you right now, it's about protecting the kids.” He then went on to imply that transgender individuals have a mental illness, stating, “They're treating the wrong part of the anatomy; they ought to be treating it up here,” as he gestured toward his head. 30 We are unaware of any studies assessing the relationship between transgender identity and perpetration of sexual crimes. However, studies have consistently replicated the finding that transgender individuals are often victims of sexual assault. Nearly half (47%) of respondents in the 2015 U.S. Transgender Survey had been sexually assaulted at some point in their lifetime and 10 percent of the incidents had happened in the past year. 29 The third argument used by opponents is that if people are allowed to use the restroom that is consistent with their gender identity, individuals (usually male) with sexual disorders such as pedophilic disorder, voyeuristic disorder, or exhibitionistic disorder will disguise themselves as members of the opposite sex to sneak into restrooms and commit sex crimes. Former Arkansas Governor Mike Huckabee embraced this notion at the 2015 National Religious Broadcasters Convention. In a controversial joke, Governor Huckabee stated, “Now I wish that someone told me that when I was in high school that I could have felt like a woman when it came time to take showers in PE.” 31

To assess the degree to which sexual predators may take advantage of transgender friendly restroom laws, we conducted a systematic search of PubMed, Nexis Uni, and Google to find cases of such behaviors. Although the searches of PubMed and Nexis Uni returned no pertinent results, the Google search returned websites for conservative organizations such as the Family Research Council, American Family Association, the Liberty Counsel, and Breitbart, which have compiled lists of alleged cases. These websites claim that the compiled incidents are evidence that transgender individuals or individuals taking advantage of transgender-friendly restroom provisions will prey upon victims in restrooms. 32 , – , 36 A thorough review revealed that only a small number of cases actually involved perpetrators who were transgender, perpetrators who falsely claimed to be transgender, or perpetrators who attempted to disguise themselves as a member of the opposite sex to gain restroom access. These are detailed in Table 2 .

Sex Crime Cases Occurring in Restrooms or Changing Facilities

We were able to locate only one report of a transgender individual committing a sexual offense (taking photos) in a dressing room. Instances of cis-gender men dressing as women to gain access to women in various stages of dress also appear to be an extremely rare phenomenon based on our review. Of the incidents in which cis-gender males dressed as women to gain access to female facilities, 11 occurred in restrooms and 7 occurred in other female facilities.

Whether the advent of transgender-inclusive restroom laws results in an increase in sexual assaults in restrooms on a population level is unknown at this time. Although several police departments report no observed increase in sexual violence or public safety problems in jurisdictions that have nondiscrimination laws, 37 we are unaware of the existence of any formal studies assessing the relationship between transgender-inclusive restroom laws and rates of sexual assaults in those jurisdictions. There may be incidences of sexual assaults after the passage of more permissive laws, but we have not found any studies supporting an increase in such assaults.

• Ethics-Related Implications

Nondiscrimination bills regarding restroom access raise several ethics-related concerns. Advocates of a bill make utilitarian arguments (i.e., the best course of action is to implement a bill, because it benefits the majority) and raise the harm principle as a reason to limit a transgender person's autonomy with regards to his or her choice of restroom. Opponents to these laws make arguments about human rights and the principles of respect for persons, justice, and autonomy; these arguments are supported by consequentialist rationales. In other words, opponents to restroom access bills believe that the laws are ethically problematic because they have negative consequences for the transgender community.

Human rights form the basis for how we respect the dignity of others. Divan et al . 38 said, “providing equal access to public facilities, and developing and implementing anti-discrimination laws and policies that protect trans people in these contexts, including guaranteeing their safety and security, are essential to ensure that trans individuals are treated as equal human beings” (Ref. 39 , p 3). Those in favor of allowing transgender people to use the restroom that is consistent with their gender identity argue that transgender rights are human rights. 39 They state that, like all people, transgender people have fundamental rights to life, liberty, equality, health, privacy, and expression; laws that interfere with their ability to safely express their gender identity interfere with each of these rights. 38

Opponents to these bills also make arguments based on the principle of justice, which can be described as “fair, equitable and appropriate treatment in light of what is due or owed to persons” (Ref. 40 , p 226). The principle of justice arises from Aristotle's principle of formal equality, which says that “equals should be treated equally, and unequals unequally” (Ref. 40 , p 227). In other words, people should be treated differently only if there is a relevant reason to do so. For example, a man should not be paid more than a woman to work at a cash register just because he is a man. The disparate salaries would be a form of injustice because his sex is not relevant to the work that he performs. However, there are instances when it is justifiable to treat people differently. For example, when a person engages in a criminal act and infringes on the rights of others, it is acceptable to restrict his freedom of movement by imprisoning him.

The problem with Aristotle's principle is that it requires specification and interpretation and lacks the substance needed to apply to more complex situations. For example, two general justice arguments are made about legislation. Advocates of equal access to restrooms say that transgender women are not different from biological women in any relevant way; therefore, to be just, transgender women should be allowed to access the women's restroom. Conversely, advocates of equal access laws say that these two groups should be treated differently because they are unequal in a very relevant way: biological sex characteristics.

Opponents to legislating equal access to restrooms also argue that such laws violate the principle of respect for persons. This principle requires the protection of vulnerable individuals. The political aspects of vulnerability are related to social, economic, and cultural factors. 41 , – , 43 In other words, a person is vulnerable on the basis of … being a member of a population or a group with special needs or barriers to care from a variety of conditions or circumstances and are less able than others to safeguard their own needs and interest and/or are at high relative risk of suffering poor physical, psychological, and social health [Ref. 42 , p 283]. Ekmekci 43 argues that transgender individuals are vulnerable from a political perspective, because they are susceptible to exploitation because of disadvantages resulting from social isolation, high incidence of disease, and lack of social supports and health services.

Opponents state that equal restroom access laws create discriminatory environments and fuel stigmatization and transphobia, which in turn lead to worse health outcomes. For example, Reisner et al. 44 found that those who had experienced public accommodation discrimination within the past 12 months reported high rates of physical and emotional symptoms. Testa et al. 45 found that gender minority external stressors, including rejection, victimization, and discrimination, related to increased risk of suicidal ideation through the experience of internalized transphobia and negative expectations of others' treatment of them. Similarly, Seelman and colleagues 46 found that the suicide rate of transgender college students who had been denied gender-congruent restroom access was 1.45 times higher than those who had not been denied access.

Opponents of the bills also point to several studies that show how discrimination against transgender people leads to violence, poverty, and isolation. Discrimination has also been shown to interfere with transgender people's access to social and economic support systems as well as health care. 38 , 47 , – , 50 Opponents assert that, because transgender individuals are vulnerable and because equal restroom access legislation creates discriminatory environments that lead to violence and poor health and socioeconomic outcomes, on the basis of the principle of respect for persons, society should protect this group by ensuring that transgender rights laws include protections that cover public accommodations, including restrooms. 44

The second component of the principle of respect for persons is that autonomous beings should be able to act autonomously, or by their own deliberation and choices. Based on this, opponents to equal restroom access argue that a person should be allowed to decide which gender he chooses to express and to act in accordance with that gender. However, there are some restrictions to autonomy. For example, people should be allowed to label themselves however they wish: Republican, Jewish, heterosexual, man, or woman. However, others do not necessarily have to respect this self-identification if it has meaningful consequences for them. If it does have meaningful consequences, based on the principle of harm, there may be grounds to restrict such self-identification. 51 Advocates of legislating equal access to public accommodations say that there are grounds to restrict this self-identification if it guarantees biological men access to the women's restrooms, because their presence jeopardizes the safety of the biological women and young children.

Advocates of legislation also make utilitarian arguments in favor of these laws. Utilitarians assert that the most ethical course of action is the one that promotes the greatest utility, or, generally speaking, the greatest good for the greatest number of people. Predictably, the utilitarian material principle of justice is, “to each person according to rules and access that maximize social utility.” Because there are more cis-gender people than there are transgender people, it may be of greater utility to maximize the comfort of cis-gender people.

In summary, opponents to equal restroom access make arguments about human rights and the principles of respect for persons, justice, and autonomy, whereas advocates of the bills raise utilitarian arguments and the harm principle. Opponents argue that, like all people, transgender people have fundamental rights to life, liberty, equality, health, privacy, and expression, and it is only by respecting persons that we can ensure social, economic, and cultural influences that promote human and societal flourishing. Furthermore, the fact that discrimination against transgender individuals has been associated with poor health and socioeconomic outcomes is compelling. Based on these data, it seems likely that legislation that prohibits transgender individuals' access to gender-congruent facilities would lead to worse health and socioeconomic outcomes for this population. However, to date, no empirical studies have looked at the relationship between the restrictive legislation and markers of health and well-being for transgender individuals.

As described above, there is also little evidence that respecting a person's self-identification as a certain gender and allowing that person to use the restroom consistent with that gender causes harm to others. The discomfort that some cis individuals who encounter an obviously transgender individual in the restroom may feel is a minor harm that pales in comparison to the results of the discrimination that transgender individuals may experience as a result of the denial of access. If this is true, then the consequences of the bills are not substantial enough to justify restricting a transgender individual's right to express his gender identity by using gender-congruent facilities. However, the relationship between legislation regarding restroom access and rates of sexual assault against cis-gender individuals in public restrooms has not been studied empirically. Therefore, opponents' theoretical arguments require strengthening by additional research into this area.

• Legal Implications

Constitutional Arguments

Several constitutional arguments have been made in both support and opposition to legislation governing access to public accommodations. These arguments are based on the Equal Protection and Due Process Clauses of the Fourteen Amendment, and the right to privacy as derived from the penumbra of the First, Fourth, Fifth, and Ninth Amendments. Although the Fourteenth Amendment to the United States Constitution promises equal protection and due process for all people, the Equal Protection Clause was only recently applied to transgender rights. 52

Courts apply one of three standards to Equal Protection cases: rational-basis review, intermediate scrutiny, or strict scrutiny. If a law infringes on a fundamental right or targets a suspect class, courts turn to strict scrutiny, under which “classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Suspect classes include race, national origin, and religion. 53 Although Judge Jed Rakoff of the Southern District of New York ruled in 2015 that gender identity or transgender individuals constitute a “quasi-suspect” class, other courts have not adopted this view. 22 Because gender is not a suspect class, it does not invoke strict scrutiny; however, it does warrant intermediate scrutiny because there is “real danger” that seemingly reasonable policies in fact reflect “archaic and overbroad generalizations … [or] outdated misconceptions [about gender]”. 53 The Equal Protection Clause has been raised both by supporters and opponents of equal restroom access bills: whereas advocates of the laws say that, for example, a transgender woman is not being treated any differently than any other biological male by being mandated to use either a male or single-stall restroom, opponents argue that she is not being awarded the same protection that other females receive.

Advocates of transgender rights have also pointed to the landmark decision in Obergefell v. Hodges , which holds that the fundamental right to marry is guaranteed to same-sex couples by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. In Obergefell v. Hodges , the majority opinion stated that “the Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity” (Ref. 54 , p 2593). As Skinner-Thompson says, “The court's recognition that both due process and equal protection require that individuals be permitted to self-determine—to define and express themselves—has unmistakable extension to rights for the transgender community”. 55 Therefore, although the Supreme Court has yet to address restroom access, Obergefell v. Hodges may have set an important precedent.

Proponents of restroom laws cite these laws as protecting Constitutional rights to privacy: “a woman has a reasonable expectation [of privacy] that she will not encounter men in the restroom.” 54 However, public restrooms are already designed to protect privacy by providing individual stalls. In addition, social norms already require people to keep their eyes to themselves when in public restrooms. Therefore, it seems that the privacy argument must not be about privacy in the typical sense, but rather “modesty” or “gender privacy” (i.e., not being seen by members of the opposite sex). 51 , 53 Regardless, denying access to restrooms consistent with a person's gender alienates people in “a manner that is disproportionate to the privacy concerns at stake.” 51

Opponents to the restroom laws also raise concerns about privacy. The restroom laws presuppose that someone will enforce the law, perhaps by using information from a birth certificate. Not only would this be incredibly intrusive and difficult to enforce, but also the Due Process Clause of the Fourteenth Amendment prevents the government from disclosing a person's intimate and sensitive information, including whether they are transgender. 55 If transgender people were forced to use restrooms that did not correspond with their genders every time they used a public restroom, it would identify them as transgender every time.

Role of the Forensic Psychiatrist

Forensic psychiatrists may be asked to assist in cases involving transgender individuals and public facilities in the following manner: to determine whether an individual is transgender; to determine emotional damage in a transgender individual who has been harassed in relation to a public facility; to educate the trier of fact about the likelihood that creating gender-inclusive restrooms will result in sexual assaults; or to determine the needs of a transgender individual in a correctional setting. In light of the recent legislation, forensic psychiatrists have been asked to opine the potential dangers in the establishment of gender-inclusive restrooms. More specifically, expert opinions may be sought to assist legal decision makers in assessing the risks and benefits of creating such laws. 56

The forensic psychiatrist working in this area should be familiar with the relevant Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) diagnoses. The diagnosis gender identity disorder was removed, and gender dysphoria disorder was added. Transgenderism is no longer considered a mental illness. However, forensic psychiatrists may be asked to determine whether an individual is truly transgender or is malingering a transgender identity. Organizations such as The World Professional Association for Transgender Health (WPATH) and The Endocrine Society have issued clinical practice guidelines for the treatment of transsexual persons. 57 , 58 Although these guidelines may be useful in understanding transgender individuals, there is no standard gender screening tool or instrument used to diagnosis a transgender identity. Therefore, the diagnosis is largely based on self-report. Collateral information from previous providers, families, and significant others may be helpful in understanding the individual's reported transgender experience.

In addition to familiarity with the presentation of a transgender individual, forensic psychiatrists should be familiar with psychiatric comorbidities in this population. When the forensic question relates to the risk of sexual offending, the forensic psychiatrist should perform a psychosexual evaluation that includes a review of systems for the paraphilic disorders as well as the determination of identified risk factors for sexual offending.

Most forensic psychiatrists do not have experience working with transgender individuals. The most common setting for a forensic psychiatrist to encounter a transgender individual is in the correctional setting. In this setting, a forensic psychiatrist may be asked to opine about the risks involved in placing the individual in sex-congruent facilities. Although the courts will decide whether transgender individuals should have access to gender-neutral restrooms, the forensic psychiatrist can provide answers about the psychiatric implications of such decisions.

• Conclusions

From a scientific and evidence-based perspective, there is no current evidence that granting transgender individuals access to gender-corresponding restrooms results in an increase in sexual offenses. However, the arguments for and against legislating access to public accommodations are not simply answered by science. The basis for differing opinions includes whether transgender individuals are mentally ill and whether there are legal and ethics-related justifications for gender-inclusive restrooms.

Psychiatrists, not unlike the general public, have struggled to conceptualize transgender individuals. The DSM-5 adopted the new term gender dysphoria to replace gender identity disorder, which defined transgender as a mental illness. This significant change, now only four years old, is not understood by the community at large. As psychiatrists, we must educate others about what constitutes a mental illness (i.e., gender dysphoria) and what is considered a healthy variant of gender expression (i.e., transgenderism). As forensic psychiatrists, we may be asked to opine about whether gender-inclusive restrooms pose risks for transgender individuals and their cis-gender peers. It is important to be aware of societal bias as well as our own bias when performing these evaluations. As the debates continue in this area, we should remain focused on evidence-based data to provided competent, objective opinions.

Disclosures of financial or other potential conflicts of interest: None.

• © 2018 American Academy of Psychiatry and the Law
• 1. ↵ General Assembly of NC House Bill 2 (2016) .
• 2. ↵ Charlotte, N.C., Code of Ordinances 7056 (2016) .
• 4. ↵ DOJ Letter to NC Dept of Public Safety re HB 2 . May 4 2016 . Available at: http://files.eqcf.org/cases/doj-letter-to-nc-dept-of-public-safety-re-hb-2// . Accessed February 23, 2018
• 5. ↵ Violence Against Women Reauthorization Act of 2013, 42 U.S.C. §§ 13701–14040 (2013) .
• 6. ↵ Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1964) .
• 7. ↵ Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (1972) .
• 8. ↵ DOJ Letter to UNC re HB 2 . Available at: http://files.eqcf.org/cases/doj-letter-to-unc-re-hb-2/ . May 4 , 2016 /. Accessed February 23, 2018
• 9. ↵ McCrory v. United States, No. 5:16-CV-238-BO (E.D.N.C. Sept. 1, 2016) .
• 10. ↵ McCrory, NC Lawmakers sue justice department over hb2; feds counter with lawsuit . Charlotte Observer . May 10 , 2016 . Available at: http://www.charlotteobserver.com/news/politics-government/article76502777.html/ . Accessed February 23, 2018
• 11. ↵ United States v. North Carolina, No. 1:16CV425 (M.D.N.C. December 16, 2016) .
• 12. ↵ Carcaño, v. McCrory, No. 1:16cv236 (M.D.N.C. Aug. 26, 2016) .
• Schuster MA ,
• Reisner SL ,
• Somashekhar S ,
• 18. ↵ G. G. v. Gloucester County School Board, 853 F.3d 729 (4th Cir. 2017) .
• 20. ↵ General Assembly of North Carolina House Bill No. 142/S.L. 2017–4.; 2017 .
• 23. ↵ National LTBGQ Network : State Nondiscrimination Laws in the U.S . Last updated, May 21, 2014. Available at: http://www.thetaskforce.org/static_html/downloads/reports/issue_maps/non_discrimination_5_14_new.pdf/ . Accessed February 23, 2018
• 24. ↵ Know Your Rights : Transgender People and the Law . 2018 . Washington DC : American Civil Liberties Union . Available at: https://www.aclu.org/know-your-rights/transgender-people-and-law . Accessed February 23, 2018
• 25. ↵ State Action Center : Take action against anti-trans legislation now! 2018 . Washington DC : National Center for Transgender Equality . Available at: http://www.transequality.org/action-center . Accessed February 23, 2018
• 26. ↵ National Conference of State Legislatures : “Bathroom Bill” legislative tracking . Washington DC : NCSL . Available at: http://www.ncsl.org/research/education/-bathroom-bill-legislative-tracking635951130.aspx . Published 2018/ . Accessed February 28, 2018
• Herman JL ,
• 32. ↵ Family Research Council : Issue Brief- Bathroom Incidents . Washington, DC : Family Research Council , April 2017 . downloads.frc.org/EF/EF16F27.pdf . Accessed February 23, 2018
• 34. ↵ Liberty Counsel : The truth about “transgender” bathrooms . Orlando, FL : Liberty Counsel , 2017 . www.lc.org/transgender . Accessed February 23, 2018
• 36. ↵ Woman Means Something Campaign : Violence Database . Vancouver, BC, Canada : Woman Means Something Campaign , 2016 . Available at: http://womanmeanssomething.com/violencedatabase/ . Accessed February 23, 2018
• 37. ↵ National Center for Transgender : What Experts Say. School Officials Agree: Policies Protecting Transgender Student Do Not Compromise the Privacy or Safety of Other Students . Washington, DC : National Center for Transgender Equality 208 . Available at: https://transequality.org/what-experts-say// . Accessed February 23, 2018
• Smelyanskaya M
• Shapiro S ,
• Beauchamp T ,
• Childress J
• Hughto JMW ,
• Dunham EE ,
• Michaels MS ,
• Seelman KL ,
• Colon-Diaz MJP ,
• LeCroix RH ,
• 47. ↵ United Nations Development Programme : Health Policy Project, Asia Pacific Transgender Network, Blueprints for the Provision of Comprehensive Care for Trans People and Trans Communities in Asia and the Pacific . Available at: http://www.who.int/hiv/pub/transgender/blueprint-trans-asia.pdf/ . New York , 2015
• 48. ↵ Global Commission on HIV and the Law : Overview of the Asia-Pacific Regional Dialogue : February 16–17 , 2011 . Available at: http://hivlawcommission.org/index.php/regional-dialogues-main/asia-pacific/ . Accessed February 23, 2018
• 49. ↵ Transgender Europe : Trans Murder Monitoring 2015 . Berlin: Transgender Europe , May 8 , 2015 . Available at: http://tgeu.org/tmm-idahot-update-2015/ . Accessed February 23, 2018
• 50. ↵ Transgender and Intersex Africa : Transilience Project by SHE . Pretoria, South Africa : Transgender and Intersex Africa , October 13 , 2014 . Available at: http://transgenderintersexafrica.org.za/?p=272 . Accessed February 23, 2018
• LaBossiere M
• 54. ↵ Obergefell v. Hodges, 135 S. Ct. 2584 (2015) .
• Skinner-Thompson S
• Coleman E ,
• Bokting W ,
• Hembree WC ,
• Cohen-Kettenis P ,
• Delemarre-van de Waal HA ,

In this issue

• Table of Contents
• Index by author

Thank you for your interest in recommending The Journal of the American Academy of Psychiatry and the Law site.

NOTE: We only request your email address so that the person you are recommending the page to knows that you wanted them to see it, and that it is not junk mail. We do not capture any email address.

Citation Manager Formats

• EndNote (tagged)
• EndNote 8 (xml)
• RefWorks Tagged
• Ref Manager

• Tweet Widget
• Facebook Like
• Google Plus One

Jump to section

Related articles, cited by..., more in this toc section.

• Legal Implications of Psychiatric Assessment for Medical Aid in Dying
• Insights from California on Involuntary Commitment for Substance Use
• Mute by Visitation of God, Competency to Stand Trial and Fitness to Plead

Similar Articles

Explore the Constitution

• The Constitution
• Read the Full Text

Dive Deeper

Constitution 101 course.

• The Drafting Table
• Supreme Court Cases Library
• Founders' Library
• Constitutional Rights: Origins & Travels

Start your constitutional learning journey

• News & Debate Overview

Constitution Daily Blog

• America's Town Hall Programs
• Special Projects

Media Library

America’s Town Hall

Watch videos of recent programs.

• Education Overview
• Constitution 101 Curriculum
• Classroom Resources by Topic
• Classroom Resources Library
• Live Online Events
• Professional Learning Opportunities
• Constitution Day Resources

Constitution 101 With Khan Academy

Explore our new course that empowers students to learn the constitution at their own pace..

• Explore the Museum
• Plan Your Visit
• Exhibits & Programs
• Field Trips & Group Visits
• Host Your Event
• Buy Tickets

New exhibit

The first amendment, explaining bathroom bills, transgender rights, and equal protection.

May 6, 2016 | by Lana Ulrich

Lana Ulrich, associate in-house counsel at the National Constitution Center, looks at the detailed arguments in the debate over transgendered persons, laws that determine how they can access public bathrooms, and issues about privacy rights.

Public bathrooms have become the latest frontier in the LGBT rights movement. At least a dozen states, including North Carolina, have passed laws removing anti-discrimination protections for LGBT people; and some include “bathroom bills” requiring that the bathrooms a person uses is determined by his or her biological gender at birth.

LGBT and liberal groups like the ACLU have decried these laws as discriminatory against transgendered persons, while conservative groups have voiced support for these laws as protecting privacy rights. These measures implicate important equal protection issues under the Constitution as well as federal laws like Title VII and Title IX that prohibit discrimination on the basis of sex.

For instance, on May 4, the Justice Department’s Civil Rights Division wrote a letter to North Carolina advising Governor McCrory that its law, HB-2, violated civil rights laws including Title VII, and that the state had until Monday to abandon the measure or else risk losing federal funding.

On May 9, North Carolina and the Justice Department filed “dueling lawsuits” over HB-2, with each filing a complaint against the other only several hours apart. In the suit against DOJ , Gov. McCrory and Secretary of Public Safety Frank Perry on behalf of North Carolina accused the federal government of “baseless and blatant overreach” in “an attempt to unilaterally rewrite long-established federal civil rights law in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation by the Courts.”

Meanwhile, DOJ’s suit against North Carolina —which also names the state’s department of public safety, and the University of North Carolina and the school’s board of governors—argues that the measure is discriminatory and violates civil rights laws including Title VII, Title IX, and the Violence Against Women Reauthorization Act (VAWA). Gov. McCrory insists that the lawsuit was filed to seek clarity on the issue, while Attorney General Loretta Lynch says that no clarification on federal civil rights laws is needed.

The Grimm Ruling

The fight over bathroom use and LGBT rights has been playing out at the local level as well, in public schools throughout the country. The Fourth Circuit recently handed down an important ruling on this issue in Grimm v. Gloucester Country School Board , a case concerning a boy’s right to use the boys’ restroom.

Gavin Grimm, 16, a transgender boy, was diagnosed with gender dysphoria, and as part of his treatment his therapist recommended that he begin “living in accordance with his gender identity in every possible respect, including using the appropriate restroom.” Grimm was initially allowed to use the boys’ restroom, but after several parents complained, the school held several meetings and debates and then issued a policy stating that the use of boys’ and girls’ restroom and locker rooms “shall be limited to the corresponding biological genders, and students with sincere gender identity issues shall be provided an alternative private facility.” Grimm, who identifies as male but has not yet had sex reassignment surgery, was designated female under the policy. As an alternative to the girls’ restroom, the school provided a unisex or gender-neutral bathroom that Grimm and any other student could use.

The ACLU sued the school on behalf of Grimm, arguing the policy violated Title IX of the Educational Amendments Act of 1972, which prohibits discrimination on the basis of sex in any educational program that gets federal funding.  They argued for Grimm’s ability to use the boys’ bathrooms as well as a preliminary injunction to allow him to use the bathroom while his case proceeded.

The Department of Education (DOE) regulations implementing Title IX specifically allow schools to provide separate restrooms on the basis of sex. But in 2015, the DOE issued a memo saying that when a school decides to treat students differently on the basis of sex, it “generally must treat transgender students consistent with their gender identity.” The ACLU emphasized this interpretation as part of Grimm’s Title IX claim. The complaint also argued that the policy violated Grimm’s rights under the Equal Protection Clause of the 14th Amendment.

The district court for the Eastern District of Virginia dismissed Grimm’s Title IX claim and denied his request for a preliminary injunction, without ruling on his Equal Protection claim. But the Fourth Circuit reversed and remanded, granting the DOE’s interpretation Auer deference and finding that a Title IX claim could be made, and ruling that a new decision on the injunction was warranted.

In response to the Fourth Circuit’s ruling, Josh Block, Grimm’s ACLU attorney, said: “With this decision, we hope that schools and legislators will finally get the message that excluding transgender kids from the restrooms is unlawful sex discrimination.”  Commenting on his own case, Grimm said : “Matters like identity and self-consciousness are something that most kids grapple with in this age range. When you’re a transgender teenager, these things are often very potent. I feel humiliated and dysphoric every time I’m forced to use a separate facility.” The school district is currently seeking a rehearing en banc to review the ruling.

In Grimm , Judge Niemeyer dissented, writing: “This holding completely tramples on all universally accepted protections of privacy and safety that are based on the anatomical differences between the sexes. . . . [and] overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect.” This rationale for biological separation of bathrooms was also cited by Gov. McCrory when he signed HB-2 into law, arguing that the bathroom provision was necessary to prevent local governments from allowing “a man to use a woman’s bathroom, shower or locker room.”

Groups like the Alliance Defending Freedom (ADF) support policies like that of the Gloucester County School Board and bills like North Carolina’s HB-2. Like Judge Niemeyer and Gov. McCrory, Members of the ADF argue that society—as well as Title IX—has always recognized the innate differences between men and women and has respected those differences by providing separate facilities for showering, changing, and using the restroom. These policies and bills protect people’s right to privacy and particularly the right for children in a school setting to not be exposed to the private anatomy of the opposite sex.

Other Federal Cases

These groups are on the offensive as well, and have become plaintiffs in suits challenging federal regulations that require schools to bend their bathroom policies to the newly clarified federal standards. In Students and Parents for Privacy v. United States Department of Education , a group of roughly 50 suburban families have filed suit against their Illinois school district, the Department of Education and the Justice Department, alleging that the district is violating students’ privacy and safety by allowing transgender students to use restrooms and locker rooms of the gender with which they identify. The Department of Education had warned the school that it was violating Title IX when it did not allow a transgender student who identifies as a girl to use the girls’ locker room without restriction. At risk of losing $6 million in federal funding, the school entered into an agreement that allows students to use the facilities corresponding to their gender identity. The lawsuit argues that this policy continues “to trample students’ privacy and other constitutional and statutory rights by forcing 14- to 17-year-old girls to use locker rooms and restrooms with biological males.”

These cases are significant because they are about much more than bathroom use: They concern the fundamental liberties of privacy, equality, dignity, and identity, and they implicate the ever-present challenge in law to balance and to protect these liberties against competing rights and concerns. For example, Title IX is an important element of the public school cases in particular, but these cases also have broader implications for the equal protection rights of transgender students and individuals as well as the privacy rights of students everywhere. The equal protection issue is still outstanding in Grimm , and how the court rules on it may be influential on other LGBT cases.

The Debate On The Issue

During a podcast on this case , Josh Block, who represented Grimm, debated Matt Sharp, a lawyer for the ADF, who has helped draft model policies such as the one at issue in Grimm . In addition to the privacy implications, application of administrative law principles, and legal precedents under Title VII and Title IX, they discussed the equal protection issue and the competing interests at stake: between Grimm’s right to his own gender identity and expression, and another student’s right to privacy in a restroom from a person of a different biological sex.

Block explained that the same principles that prohibit sex discrimination against trans people under Title VII and Title IX also prohibit it under the equal protection clause . And under equal protection, if there is a sex classification, it must meet intermediate scrutiny, or be substantially related to an important governmental interest, including appropriate tailoring. But these policies are blanket prohibitions, regardless of the facts on the ground and lack of evidence showing that there are any safety concerns involved with trans students using either restroom. Hence, equal protection requires that bathrooms be made available based on gender identity.

But Sharp countered that the equal protection argument boils down to whether Grimm is being treated differently than any other biological female. He argued that he was not, since the policy is facially neutral and Grimm is welcome to use either the girls’ restroom or the unisex restroom like any other female. Sharp also disagreed with Southern District of New York Judge Jed Rakoff’s 2015 ruling that gender identity or transgendered individuals constitute a “quasi-suspect” class, and pointed out that other circuits (and the Supreme Court) have not adopted this interpretation.

Absent recognition of LGBT as a suspect class, the assertion of transgender rights under the Due Process or Equal Protection Clauses may rely on the equality and dignity formulations of Obergefell v. Hodges (2015).

In Obergefell , Justice Kennedy’s majority opinion explained that “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity . ” Hence, the liberties protected by the 14th Amendment extend to “intimate choices that define personal identity and beliefs.” Law professor Lawrence Tribe has celebrated that “ Obergefell ’s chief jurisprudential achievement is to have tightly wound the double helix of Due Process and Equal Protection into a doctrine of equal dignity ,” and the decision’s establishment of same-sex couples’ freedom to marry was “understood by all to directly redress the subordination of LGBT individuals.”

And Scott Skinner-Thompson, associate law professor at NYU, has noted the case’s potential implications for trans rights : “The court’s recognition that both due process and equal protection require that individuals be permitted to self-determine—to define and express themselves—has unmistakable extension to rights for the transgender community. . . . . Understanding that transgender identity is, in part, about access to the ability [to] express and define oneself makes the relationship between the court’s ruling and transgender rights clear.”

Perhaps in a decision with more emphasis on equality than dignity under a right to “equal dignity,” LGBT rights would prevail. But as equal protection jurisprudence continues to develop and to blend with due process jurisprudence (coupled with the demise of tiered scrutiny under the federal constitution—and potentially yielding a “new equal protection jurisprudence” ) the underlying issue in bathroom cases may be on how to properly balance the personal privacy, personal dignity, or free exercise rights of some individuals with the equal dignity or identity rights of transgendered individuals.

This begs the question: who should accommodate whom? Should transgendered students of a different biological sex—like Gavin Grimm—be required to use accommodations like single-stall bathrooms in order to protect the privacy needs of their fellow students?

Or, as is the case in First Amendment law, should students that are uncomfortable with a trans student in the locker room be required to use a separate stall, or to “avert their eyes,” as Justice Harlan wrote in Cohen v. California , to avoid what might potentially make them uncomfortable?

A transgender student could be stigmatized by having to use a separate stall; or a student seeking privacy could be stigmatized as “transphobic” by opting to use a separate stall. Should a court reject a pseudo-“heckler’s veto” in this context, to protect the transgendered person’s right same right to self-expression, to be treated the same as the members of the gender with which the person identifies? (As Tribe notes, for instance, “As the Obergefell majority makes clear, the First Amendment must protect the rights of such individuals. . .  to voice their personal objections . . . but the doctrine of equal dignity prohibits them from acting on those objections . . .  in a way that demeans or subordinates LGBT individuals and their families.”) Or are individuals’ moral or privacy sensibilities in a restroom or locker room different in this context than under free speech jurisprudence—especially in a day and age where concerns for the erosion of privacy are widely lamented?

Due to the billions of dollars of federal funding at stake, Sharp has predicted that this issue may one day get to the Supreme Court. Lower courts, legislatures, and school boards are left in the meantime to sort through these important issues to try to ensure the liberties of both LGBT and non-LGBT individuals equally.

More from the National Constitution Center

Constitution 101

Explore our new 15-unit core curriculum with educational videos, primary texts, and more.

Search and browse videos, podcasts, and blog posts on constitutional topics.

Founders’ Library

Discover primary texts and historical documents that span American history and have shaped the American constitutional tradition.

Modal title

Modal body text goes here.

Share with Students

TED is supported by ads and partners 00:00

Why we need gender-neutral bathrooms

• social change
• storytelling
• Transgender

Trans Rights and Bathroom Access Laws: A History Explained

Why Bathrooms Matter to Trans People

In the battle for trans rights, controversy often swells around which bathrooms trans students are allowed to use—potentially activating long-ranging trauma and fear for trans youth.

At first blush, restroom choice may seem like a minor issue in the march toward equality for trans youth. We know trans students are victims of harassment and bullying more than their cisgender peers. We know many are occupied with navigating the complications surrounding social or physical transition. Compared to these challenges, restroom or locker room access may seem like a small thing. 

But when discrimination flares up in plain sight, when students are excluded or threatened or attacked for simply being who they are, the injustice is hard to ignore. For some students, however, the hurt may not make the news. 

We may not see that hurt, but it happens nonetheless. It happens each time a trans student is mocked for using the locker room that aligns with their identity, each time they’re coldly informed they’re in the wrong bathroom, each time they exit a stall and are greeted by another exaggerated double take.

For trans students, the inescapable message is this: “You are different.” “You are unworthy.” “You do not belong here.” 

Yet, educators occupy a powerful space. Trans students’ rights are under attack, and teachers and school staff have the authority to protect them. You can follow a few simple guidelines to affirm the rights and dignity of trans students at school.

How to Support Trans Students

Stay current. .

In the barrage of news media and constant change in the political climate, it is difficult to keep ahead of the latest updates in the bathroom access debate. Consider the refusal to be disoriented by the media muddle as a form of resistance. Arm yourself—and your students—with the facts.

Know Their Rights. 

Trans students have the right to be treated according to their gender identity and to be called by the name and pronouns that match their gender identity. Additionally, they have the right not to be bullied or harassed because they are transgender or gender non-conforming, and they have the right to use the restroom or locker room that matches their gender identity. 

Seek Out Truth. 

If you have legal questions about how the Trump administration’s interpretation of Title IX and court nominations could affect the rights of trans students and school staff, find the answers from experts at the National Center for Transgender Equality , The Transgender Law Center , The National Center for Lesbian Rights or the Sylvia Rivera Law Project . 

Learn the Laws. 

Educate yourself about the many laws that protect trans students from discrimination at school. In humanities classes, have students research the origins and implications of Title IX, the First Amendment, FERPA, the Equal Access Act, and their local state laws and school district policies. Show your students the power in finding out the truth.

Trust and honor the experiences of trans youth. 

This is the most important guideline of all. Respect trans students’ names and pronouns. Do not question their wishes, and explicitly communicate your support. As the courts continue to transform, they may need it more than ever.

To advocate for students and speak out for the rights they deserve, you can check your school policies against the law . It can take a little work to keep abreast of the increasing recognition of Title IX’s protection of trans students and to follow the progression of court cases, but understanding them will allow you to make the argument that advocates best for your students—whether they’re suffering from acute harassment and discrimination or bearing the brunt of daily microaggressions and all-too-commonplace transphobia.

This timeline can help you shore up your knowledge of court cases regarding transgender bathroom access and verify your understanding of the relevant legislation. 

A Timeline of Trans Bathroom Access

March 2016   North Carolina’s legislature passes House Bill 2, banning trans youth from using the bathroom aligned with their gender identity and restricting their access to the facility corresponding with their gender assigned at birth.

May 2016   The Departments of Justice and Education state that discriminating against transgender students because of their gender identity violates Title IX. All schools receiving federal funding must treat gender identity as a protected category—just as they must do with sex and race. 

May 2016   Officials from the Justice and Education Departments issue a memo to all school districts concerning discrimination in schools. The memo announces that, unless schools uphold the Obama administration’s trans-inclusive interpretation of Title IX, they risk being confronted with a lawsuit or loss of funding.

August 2016   Judge Reed O’Connor in Texas halts enforcement of the Obama administration’s directive for allowing transgender students to use the bathroom corresponding with their gender identity. The Trump administration later decides not to intervene.

February 2017   President Trump revokes the Obama-era interpretation of Title IX that protects transgender students from discrimination based on gender, putting the Trump administration at odds with several federal courts that have concluded that Title IX does protect trans students.

May 2018   A federal judge finds in favor of Gavin Grimm, a transgender student in Virginia who sued the school board for prohibiting him from using the boys’ restrooms. Gavin asserted that the school board’s insistence on his using bathrooms corresponding to his biological sex constituted sex discrimination and a violation of the law. 

July 2018   Federal courts rule in favor of transgender students in two cases. In Florida, a U.S. District Court ruled that, by denying Drew Adams access to the boys’ room, a local school board had violated his right to equal protection of the law under the Constitution’s Fourteenth Amendment, as well as violating Title IX. The U.S. Court of Appeals upheld a Pennsylvania school district’s decision to implement a trans-inclusive restroom policy in the Doe v. Boyertown case. 

Additional Resources

Tell Transgender Students: We’re Still Here for You (TT)

Best Practives for Serving LGBTQ Students  (TT)

FAQs: Rescission of DOJ and DOE Title IX Guidance for Trans Students

Know Your Rights: Trans Students GLSEN and ACLU

National Center for Transgender Equality

Ehrenhalt is the school-based programming and grants manager with Teaching Tolerance.

• Student sensitivity.
• The Power of Advertising and Girls' Self-Image

Print this Article

Would you like to print the images in this article?

• Google Classroom

Sign in to save these resources.

Login or create an account to save resources to your bookmark collection.

Get the Learning for Justice Newsletter

Advertisement

Supported by

Bathroom Bans for Transgender Youths Are Poised for Supreme Court Review

A recent ruling created a split among federal appeals courts on whether schools can forbid transgender students to use restrooms matching their gender identities.

• Share full article

By Adam Liptak

WASHINGTON — When the Supreme Court heard arguments in 2019 about the rights of gay and transgender workers, the justices seemed fixated on bathrooms.

In all, five justices explored questions related to who can use which bathroom, though bathrooms did not figure in the cases before them.

“Let’s not avoid the difficult issue,” Justice Sonia Sotomayor said, posing a hypothetical one: “You have a transgender person who rightly is identifying as a woman and wants to use the women’s bathroom.”

She added, “So the hard question is: How do we deal with that?”

David D. Cole, a lawyer with the American Civil Liberties Union representing a transgender woman, seemed puzzled.

“That is a question, Justice Sotomayor,” he said. “It is not the question in this case.”

The justice pressed on. “Once we decide the case in your favor,” she said, “then that question is inevitable.”

The court did decide the actual question before it — whether a federal civil rights law protected L.G.B.T.Q. workers from employment discrimination — in favor of the workers by a 6-to-3 vote. But the justices have not yet addressed the question Justice Sotomayor viewed as inevitable. A decision from the federal appeals court in Atlanta last month may change that.

We are having trouble retrieving the article content.

Please enable JavaScript in your browser settings.

Thank you for your patience while we verify access. If you are in Reader mode please exit and  log into  your Times account, or  subscribe  for all of The Times.

Thank you for your patience while we verify access.

Already a subscriber?  Log in .

Want all of The Times?  Subscribe .

Numbers, Facts and Trends Shaping Your World

Read our research on:

Full Topic List

Regions & Countries

• Publications
• Our Methods
• Short Reads
• Tools & Resources

Read Our Research On:

• Where the Public Stands on Religious Liberty vs. Nondiscrimination
• 3. Public split over bathroom use by transgender people

Table of Contents

• 1. Most say birth control should be covered by employers, regardless of religious objections
• 2. Americans divided over whether wedding-related businesses should be required to serve same-sex couples
• 4. Very few Americans see contraception as morally wrong
• 5. Vast majority of Americans know someone who is gay, fewer know someone who is transgender
• Acknowledgments
• Methodology

Americans overall are closely divided on the question of which public restrooms transgender individuals should be using. But similar to the other issues addressed in the survey, those who attend religious services on a regular basis lean somewhat more strongly toward the conservative position – in this case, that transgender people should be required to use public restrooms for the gender they were born into. Six-in-ten of those who attend religious services weekly take this stance, while a similar share of those who attend church less frequently say transgender people should be allowed to use the restrooms matching the gender with which they identify. 3

Three-quarters of churchgoing white evangelicals (76%) say transgender people should be required to use the restroom of the gender they were born into, along with 60% of Mass-attending Catholics and 55% of black Protestants who attend church regularly. Roughly half of churchgoing white mainline Protestants (53%) take the more liberal position.

Compared with those who attend religious services at least once a week, those who go less often – especially religious “nones” – are more inclined to say transgender people should be allowed to use the restroom that matches their gender identity. However, six-in-ten white evangelicals who do not attend church regularly still take the opposite view, saying that transgender people should have to use the restroom matching the gender they were assigned at birth.

The survey finds strong indications that the youngest generation of U.S. adults has a different perspective on bathroom use by transgender people. Two-thirds of adults under 30 say transgender people should be free to use restrooms that match their gender identity. Adults in their 30s and 40s are evenly split on this question, while the prevailing opinion among adults over 50 is that transgender adults should use restrooms corresponding to their birth gender.

The survey also shows that women are somewhat more likely than men to say transgender people should be allowed to use the restroom that matches their gender identity.

Relatively few Americans say they sympathize with both points of view on the question of public bathroom use by transgender people. Instead, most people express sympathy with only one side of this issue, including 32% who say they sympathize “a lot” or “some” only with those who argue that transgender people should have to use the bathroom corresponding to their birth gender, and 30% who sympathize only with the opposite viewpoint (that transgender people should be allowed to use restrooms corresponding to their gender identity). About one-in-five adults (18%) say they sympathize at least “some” with both perspectives, while another 19% express sympathy with neither side in the debate.

This pattern is seen among all religious, political and demographic groups analyzed in the survey. Some groups tend to favor one side (e.g., evangelicals tend to sympathize only with the view that transgender people should use the bathrooms matching their birth gender) or the other (e.g., about half of Jews and religious “nones” sympathize only with the view that transgender people should be able to use the restrooms that match their gender identity). But relatively few people in any group express sympathy with both sides in the debate.

And neither side has much claim to tolerance of the opposing point of view. Just 23% of those who generally think transgender people should be able to use the restrooms of their current gender identity also sympathize with the view of those who express the opposite opinion, and just 13% of those who would require transgender people to use the bathrooms of their birth gender sympathize with both sides.

Defining ‘transgender’

In this study, Pew Research Center for the first time asked Americans about their views on whether transgender people should be allowed to use the public restrooms of the gender with which they currently identify, or required to use the public restrooms corresponding to the gender they were born into. To be sure respondents knew what was meant by the term “transgender,” the text of the question included an example defining the term. (The survey was administered to a nationally representative sample online and by mail.) Half of respondents were randomly assigned questions mentioning “transgender individuals – such as people who now identify and live as females but were born male.” The other half received the opposite example; they were asked about “transgender individuals – such as people who now identify and live as males but were born female.”

Did the example respondents received affect their responses? Not really. Those asked about the male-to-female example were about as likely as those who received the female-to-male example to say they sympathize at least “some” with the view that transgender people should be allowed to use public restrooms corresponding to their gender identity (49% and 48%, respectively). And roughly half of respondents in each scenario say that if forced to choose, they would allow transgender people to use public restrooms of the gender with which they currently identify (51% in the male-to-female scenario, 50% in the female-to-male scenario).

This suggests that people’s attitudes about transgender rights have little to do with whether a transgender person identifies and lives as female but was born male, or vice versa. Instead, Americans’ opinions are tied to other factors highlighted in the report, such as religious affiliation, frequency of religious service attendance and other demographic factors.

• There are many different terms associated with transgender identity and gender identity more broadly, and this terminology continues to change over time and is also dependent on personal preference and identification. In designing this survey and writing this report, in order to prevent confusion among respondents and improve the accuracy of results, Pew Research Center sought to use terms that the general public, including those who are not well-versed in this topic, would understand, even if those might not be the terms preferred by those in the transgender community. ↩

Sign up for our weekly newsletter

Fresh data delivery Saturday mornings

Sign up for The Briefing

Weekly updates on the world of news & information

• Gender & LGBTQ
• Gender & Religion
• International Religious Freedom & Restrictions
• Religion & Government
• Religion & Politics
• Same-Sex Marriage

For Women’s History Month, a look at gender gains – and gaps – in the U.S.

Fewer than a third of un member states have ever had a woman leader, black americans firmly support gender equality but are split on transgender and nonbinary issues   , women now outnumber men in the u.s. college-educated labor force, key findings on indian attitudes toward gender roles, most popular, report materials.

• American Trends Panel Wave 20

901 E St. NW, Suite 300 Washington, DC 20004 USA (+1) 202-419-4300 | Main (+1) 202-857-8562 | Fax (+1) 202-419-4372 |  Media Inquiries

Research Topics

• Email Newsletters

ABOUT PEW RESEARCH CENTER  Pew Research Center is a nonpartisan, nonadvocacy fact tank that informs the public about the issues, attitudes and trends shaping the world. It does not take policy positions. The Center conducts public opinion polling, demographic research, computational social science research and other data-driven research. Pew Research Center is a subsidiary of The Pew Charitable Trusts , its primary funder.

© 2024 Pew Research Center

An official website of the United States government

The .gov means it’s official. Federal government websites often end in .gov or .mil. Before sharing sensitive information, make sure you’re on a federal government site.

The site is secure. The https:// ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely.

• Publications
• Account settings
• My Bibliography
• Collections
• Citation manager

Save citation to file

Email citation, add to collections.

• Create a new collection
• Add to an existing collection

Add to My Bibliography

Your saved search, create a file for external citation management software, your rss feed.

• Search in PubMed
• Search in NLM Catalog
• Add to Search

The Transgender Bathroom Debate at the Intersection of Politics, Law, Ethics, and Science

Affiliations.

• 1 Dr. Barnett is fellow in the Massachusetts General Hospital/McLean Hospital Addiction Psychiatry Fellowship, Harvard Medical School, Boston, MA. Dr Nesbit is a Forensic Psychiatry Fellow, University of California, Davis, Davis, CA. Dr. Sorrentino is Assistant Professor in Psychiatry, Harvard Medical School, Boston, MA.
• 2 Dr. Barnett is fellow in the Massachusetts General Hospital/McLean Hospital Addiction Psychiatry Fellowship, Harvard Medical School, Boston, MA. Dr Nesbit is a Forensic Psychiatry Fellow, University of California, Davis, Davis, CA. Dr. Sorrentino is Assistant Professor in Psychiatry, Harvard Medical School, Boston, MA. [email protected].
• PMID: 30026403
• DOI: 10.29158/JAAPL.003761-18
• Corrigendum. [No authors listed] [No authors listed] J Am Acad Psychiatry Law. 2018 Dec;46(4):532. doi: 10.29158/JAAPL.003809-18. J Am Acad Psychiatry Law. 2018. PMID: 30593483 No abstract available.

The debate over whether transgender individuals should be allowed to use the public restrooms (including locker rooms and changing rooms) that correspond to their currently expressed gender rather than their biological sex has been of recent interest nationally. The first state law addressing transgender access to restrooms was in North Carolina in 2016. This law prohibited transgender individuals from using the restroom that corresponded to their gender. The terms used in the bill and other legal documents caused it to be referred to as the "bathroom bill." Shortly thereafter, such bills were proposed in many states. Proponents of the bills identify the need to protect public safety by mandating that individuals use the facility that corresponds to their biological sex. Opponents describe such bills as discriminatory. The debate about these bills incorporates ethics-related, legal, and biological arguments. In this commentary, we review the history of such bills in the United States as well as the ethics-related, legal, and evidence-based arguments raised in the debate.

© 2018 American Academy of Psychiatry and the Law.

PubMed Disclaimer

Similar articles

• School Bathroom Access for Transgender Students. Kralik J. Kralik J. NCSL Legisbrief. 2016 Jul;24(26):1-2. NCSL Legisbrief. 2016. PMID: 27911074 No abstract available.
• Critical consciousness moderates the relationship between transphobia and "bathroom bill" voting. Parent MC, Silva K. Parent MC, et al. J Couns Psychol. 2018 Jul;65(4):403-412. doi: 10.1037/cou0000270. J Couns Psychol. 2018. PMID: 29999367 Free PMC article.
• School Restroom and Locker Room Restrictions and Sexual Assault Risk Among Transgender Youth. Murchison GR, Agénor M, Reisner SL, Watson RJ. Murchison GR, et al. Pediatrics. 2019 Jun;143(6):e20182902. doi: 10.1542/peds.2018-2902. Epub 2019 May 6. Pediatrics. 2019. PMID: 31061223 Free PMC article.
• Trans Women and Public Restrooms: The Legal Discourse and Its Violence. Bagagli BP, Chaves TV, Zoppi Fontana MG. Bagagli BP, et al. Front Sociol. 2021 Mar 31;6:652777. doi: 10.3389/fsoc.2021.652777. eCollection 2021. Front Sociol. 2021. PMID: 33869591 Free PMC article. Review.
• Suicide Among Transgender and Gender-Nonconforming People. Narang P, Sarai SK, Aldrin S, Lippmann S. Narang P, et al. Prim Care Companion CNS Disord. 2018 Jun 21;20(3):18nr02273. doi: 10.4088/PCC.18nr02273. Prim Care Companion CNS Disord. 2018. PMID: 29947478 Review.
• Interrogating global narratives of trans queerness. Well-being and agency? Or more stories of trans trauma? Vicars M, Milenkovic J. Vicars M, et al. Front Sociol. 2024 Apr 5;9:1343117. doi: 10.3389/fsoc.2024.1343117. eCollection 2024. Front Sociol. 2024. PMID: 38645897 Free PMC article. Review.
• News media coverage of LGBT identities over 10 years in a 400-million-word corpus. Ng R, Chow TYJ, Yang W. Ng R, et al. PLoS One. 2024 Apr 10;19(4):e0300385. doi: 10.1371/journal.pone.0300385. eCollection 2024. PLoS One. 2024. PMID: 38598524 Free PMC article.
• Gender-Neutral Toilets: A Qualitative Exploration of Inclusive School Environments for Sexuality and Gender Diverse Youth in Western Australia. Francis J, Sachan P, Waters Z, Trapp G, Pearce N, Burns S, Lin A, Cross D. Francis J, et al. Int J Environ Res Public Health. 2022 Aug 15;19(16):10089. doi: 10.3390/ijerph191610089. Int J Environ Res Public Health. 2022. PMID: 36011720 Free PMC article.
• Policy attitudes toward adolescents transitioning gender. Silva K, Nauman CM, Tebbe EA, Parent MC. Silva K, et al. J Couns Psychol. 2022 Jul;69(4):403-415. doi: 10.1037/cou0000601. Epub 2021 Dec 30. J Couns Psychol. 2022. PMID: 34968097 Free PMC article.
• The Treatment of LGBTQ+ Individuals in Behavior-Analytic Publications: A Historical Review. Morris C, Goetz DB, Gabriele-Black K. Morris C, et al. Behav Anal Pract. 2021 Apr 6;14(4):1179-1190. doi: 10.1007/s40617-020-00546-4. eCollection 2021 Dec. Behav Anal Pract. 2021. PMID: 34868821 Free PMC article. Review.
• Search in MeSH

LinkOut - more resources

Full text sources.

• MedlinePlus Health Information
• Citation Manager

NCBI Literature Resources

MeSH PMC Bookshelf Disclaimer

The PubMed wordmark and PubMed logo are registered trademarks of the U.S. Department of Health and Human Services (HHS). Unauthorized use of these marks is strictly prohibited.

• About The Journalist’s Resource
• Follow us on Facebook
• Follow us on Twitter
• Criminal Justice
• Environment
• Politics & Government
• Race & Gender

Expert Commentary

Single-sex restrooms and transgender individuals: A roundup of research

2016 collection of research and reports aimed at helping journalists write about the public policy debate surrounding transgender individuals and bathroom access.

Republish this article

This work is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License .

by Denise-Marie Ordway, The Journalist's Resource May 12, 2016

This <a target="_blank" href="https://journalistsresource.org/economics/restroom-bathroom-transgender-legislation-research/">article</a> first appeared on <a target="_blank" href="https://journalistsresource.org">The Journalist's Resource</a> and is republished here under a Creative Commons license.<img src="https://journalistsresource.org/wp-content/uploads/2020/11/cropped-jr-favicon-150x150.png" style="width:1em;height:1em;margin-left:10px;">

Across the country, public restrooms have become the subject of heated debate as school district officials, state legislators, federal authorities and business leaders argue over the appropriateness of unisex bathrooms and whether transgender individuals should be able to use facilities that match the gender with which they identify.

Those who oppose eliminating gendered restrooms – or opening them to transgender people — voice concerns about safety. Many of them argue that there is a potential danger in allowing transgender women into ladies’ rooms because men posing as transgender women will enter restrooms to prey upon girls and other women. In April 2016, Target drew national criticism after the retail giant announced that it welcomes transgender employees and customers to use the restroom or fitting room that corresponds with their gender identity . The American Family Association responded by launching a petition to boycott Target – an online petition that more than 1.2 million people had joined as of mid-May 2016.

The rancor over restroom access has grown as transgender activism has become more mainstream, thanks partly to the high visibility of transgender celebrities such as Caitlyn Jenner and Laverne Cox. In recent years, lawmakers in several states, including Kentucky , Nevada , Minnesota and Florida , have considered bills that would restrict the use of public toilets. In March 2016, the North Carolina General Assembly passed a bill that, among other things, requires students in state schools to use bathrooms and changing areas that match the sex listed on their birth certificates. The move has prompted a federal civil rights lawsuit , filed by the U.S. Department of Justice.

To help reporters navigate this highly charged issue and put it into context, Journalist’s Resource has pulled together a collection of academic research and reports. Reporters should also review the National Lesbian & Gay Journalists Association’s stylebook for guidance on the correct and appropriate use of certain words and phrases. The American Psychological Association has created a short Q&A using neutral language to explain terms such as “transgender,” “gender identity,” and “sexual orientation.” Another key resource for journalists is the Williams Institute , a think tank at UCLA Law School that conducts research on law and public policy issues related to sexual orientation and gender identity.

————————

“ Transgender Adults’ Access to College Bathrooms and Housing and the Relationship to Suicidality “ Seelman, Kristie L. Journal of Homosexuality , 2016. doi:10.1080/00918369.2016.1157998.

Abstract:  “Transgender and gender non-conforming people frequently experience discrimination, harassment, and marginalization across college and university campuses (Bilodeau, 2007; Finger, 2010; Rankin et al., 2010; Seelman et al., 2012). The minority stress model (Meyer, 2007) posits that experiences of discrimination often negatively impact the psychological wellbeing of minority groups. However, few scholars have examined whether college institutional climate factors — such as being denied access to bathrooms or gender-appropriate campus housing — are significantly associated with detrimental psychological outcomes for transgender people. Using the National Transgender Discrimination Survey, this study analyzes whether being denied access to these spaces is associated with lifetime suicide attempts, after controlling for interpersonal victimization by students or teachers. Findings from sequential logistic regression (N = 2,316) indicate that denial of access to either space had a significant relationship to suicidality, even after controlling for interpersonal victimization. This article discusses implications for higher education professionals and researchers.”

“ Estimates of Transgender Populations in States with Legislation Impacting Transgender People “ Herman, Jody L.; Mallory, Christy; Wilson, Bianca D.M. Report from the Williams Institute at UCLA School of Law, March 2016.

Summary:  “Nearly 300,000 transgender youth and adults may be negatively impacted by legislation introduced in 15 states. This report estimates the number of transgender people ages 13 and older in each of those states, including Hawaii, Illinois, Indiana, Kentucky, Massachusetts, Mississippi, Missouri, Oklahoma, South Carolina, South Dakota, Tennessee, Virginia, Washington, Wisconsin, and Wyoming. These bills would limit access to single-sex restrooms and locker rooms at schools and in public places; limit protections based on gender identity; permit individuals and businesses to discriminate against transgender people based on religious and moral beliefs; and limit the ability to change certain vital records documents, such as birth certificates, or enforce the use of birth certificates to establish an individual’s sex for certain purposes. The report includes a brief description of each bill, which age groups it would affect, and how many transgender people we estimate live in each state.”

“ Potty Parity in Perspective: Gender and Family Issues in Planning and Designing Public Restrooms “ Anthony, Kathryn H.; Dufresne, Meghan. Journal of Planning Literature , 2007. doi: 10.1177/0885412206295846.

Abstract:  “Public restrooms are among the few remaining sex-segregated spaces in the American landscape, tangible relics of gender discrimination. This article describes how public restrooms have historically discriminated by class, race, physical ability, sexual orientation, as well as gender. It examines how public restrooms pose special health and safety problems for women, men, children, elderly, persons with disabilities, and caregivers. It chronicles potty parity legislation, examining impacts of and backlash from recent laws. It presents new developments signaling a growing international movement and a quiet restroom revolution: the newly formed World Toilet Organization, American Restroom Association, increased family and unisex restrooms, and technological inventions such as automatic self-cleaning public toilets. It proposes innovative solutions about how twenty-first-century public restrooms can make cities more livable; offers roles for planners, designers, and civic officials, and suggests new research directions. Sources include an extensive literature review of relevant legal research, scholarly publications, and media coverage.”

“ Gendered Restrooms and Minority Stress: The Public Regulation of Gender and its Impact on Transgender People’s Lives “ Herman, Jody L. Journal of Public Management & Social Policy , 2013, Vol. 19.

Abstract:  “The designers of our built environment have created public facilities that are segregated by gender, such as public restrooms, locker rooms, jails, and shelters. Reliance upon gender segregation in our public spaces harms transgender and gender non-conforming people. This paper employs a minority stress framework to discuss findings from an original survey of transgender and gender non-conforming people in Washington, D.C. about their experiences in gendered public restrooms. Seventy percent of survey respondents reported being denied access, verbally harassed, or physically assaulted in public restrooms. These experiences impacted respondents’ education, employment, health, and participation in public life. This paper concludes with a discussion of how public policy and public administration can begin to address these problems by pointing to innovative regulatory language and implementation efforts in Washington, D.C. and suggests other policies informed by the survey findings.”

“ Transgender Individuals’ Access to College Housing and Bathrooms: Findings from the National Transgender Discrimination Survey “ Seelman, Kristie L. Journal of Gay & Lesbian Social Services , 2014, Vol. 26. doi: 10.1080/10538720.2014.891091.

Abstract:  “Within higher education settings, transgender people are at risk for discrimination and harassment within housing and bathrooms. Yet, few have examined this topic using quantitative data or compared the experiences of subgroups of transgender individuals to predict denial of access to these spaces. The current study utilizes the National Transgender Discrimination Survey to research this issue. Findings indicate that being transgender and having another marginalized identity matters for students’ access to housing and bathrooms. Trans-women are at greater risk than gender-nonconforming people for being denied access to school housing and bathrooms. Implications for practice and research are detailed.”

Keywords: public toilet, gender identity, gender queer, university housing, locker room, water closet

About The Author

Denise-Marie Ordway

REVIEW article

Trans women and public restrooms: the legal discourse and its violence.

• 1 Laboratory PoEHMaS (Politics, Enunciation, History, Materialities, Sexuality), Institute of Language Studies, University of Campinas, Campinas, Brazil
• 2 Department of Linguistics, Institute of Language Studies, University of Campinas, Campinas, Brazil

Safe access to public restrooms is an essential need for participation in civic life, in the workplace, in educational settings, and other public spaces. This is no different for transgender people. However, access to public restrooms according to gender identity has sparked controversy to the extent that transgender people face embarrassment and even expulsion from these spaces. The lack of access of the transgender population to public restrooms has a negative impact on the physical and mental health of this population. Thus, this article aims to address the main consequences that the ban on the use of bathrooms has for the transgender population, specifically the access of transgender women to the women's restroom. We covered some legal aspects of “bathroom laws” and the main arguments in this discussion. We understand that the prohibition of access to the restroom constitutes a form of gender violence and discrimination, as we conclude that the arguments that express concerns about safety are not supported.

Introduction

At the restroom door, the security guard came to me and asked for my documents. I replied: “why?” He said: “you know why”. I replied: “I don't know”. So I went into the bathroom with my friend and I suddenly realized that the bathroom was being evacuated. I was alone in the bathroom. He sent a cleaning woman into the bathroom and asked everyone to leave. At the time… I think that was the biggest humiliation I went through in my whole life and, believe me, I've been quite humiliated. Because he treated me as if I were a delinquent, but not just any delinquent, a highly dangerous one, who might risk those people, so dangerous that a public place needed to be evacuated 1 (Maria Clara Spinelli 2 ).

Once the door is closed, a white toilet, between 40 and 50 cm height, as if it were a perforated ceramic stool that connects our defecating body to an invisible universal cloaca ( Preciado, 2018 ).

Surveillance, violence, humiliation, embarrassment, trauma, and suffering are everyday actions and affections in the lives of some individuals who need access to public restrooms in Brazil and throughout the world. Preciado (2018) notes that it is when architecture seems to harmlessly serve basic natural needs that a perverse and effective policy of access restriction is established, in which doors, windows, furniture, walls, partitions, exits, and entrances work as a complex apparatus at the service of technologies of gender 3 . Just as there is extensive research in Gender Studies regarding the complex network of constraints involving the presence of women in public spaces 4 , it is urgent to analyze the policy of transphobic spatial segregation that permeates many practices and functions, which has as one of its most violent exclusion and segregation devices in the access to public restrooms. The language in social practices and subjective relationships actively participates in these exclusion devices.

From the account of Maria Clara Spinelli, we have a sample of how discrimination operates. It is a complex apparatus that involves not only the State and its institutions, but the smallest and singular dimension—although not the less cruel—of everyone who authorizes themselves to be the “inspector of other's gender.” This discourse involves, for example, the security agent of a shopping mall, who, from misunderstanding games of glance, recognizes certain individuals as subjects, and authorizes himself to question them, demanding their documents, saying “you know why.” It is by returning to the other the evidence of historical violence that the arguments turn into a “you know why,” closing the door and locking the other inside the very own violence that victimizes them.

Language helps us realize how certain ideological processes materialize, and, in this case, we are facing a very familiar functioning. According to Pêcheux (1975/2009) , it is not just about “everyone knows”—i.e., fundamental ideological evidence—, but the “you know,” which implies an enunciative game in which the subject is placed as accomplice of the violence that affects them: “you and I know why 5 .” A perverse game that finds shelter in the social relations, as all the women present agree with the scene and participate in it, leaving the bathroom. We ask ourselves: what if they stayed? What if, by staying, they showed the security guard that the only dangerous thing was his prejudiced attitude? And that the assumption of a danger and threat say much more about who acts that way and where their desire rests? Maria Clara remembers that the restroom is a public space. Are we really willing to live together?

This account, or rather, this outburst, is available on Youtube, which confirms that there is a voice, a face, a body giving life to those words, faltering in the syntax, exposing how disturbing it is to express oneself in a traumatic experience. If we consider enunciation, we can notice when the speech trembles, when the pause interrupts the word, when the nervous laughter is followed by the expression: “and, believe me, I've been humiliated a lot.” The most humiliating episode in Spinelli's life takes place at the entrance of a “Women's” restroom, as the door sign indicated. And we know that crossing that door, or rather, crossing that border, says much more about the subject's relationship with desire—by a psychoanalytic ( Allouch, 2010 ) perspective—and the subject's relationship with a naming process, which is part of a repeated norm ( Butler, 1993/2013 , p. 161), than a biological, anatomical, or genetic data.

The bathroom is part of the exclusion operation of cities and, as Preciado (2018) points out, it is necessary to think of the historicity of the public bathroom as a bourgeois institution responsible the management of bodily waste, especially from the nineteenth century onwards, which emerges in accordance with conjugal and domestic codes crossed by the spatial division of gender, the normalization of heterosexuality 6 and the pathologization of homosexuality: “[…] In the twentieth century, bathrooms became authentic public inspection cells, in which the adequacy of each body with the current codes of masculinity and femininity is evaluated 7 ” It is as if an unwritten law authorizes people going to the bathroom to inspect the bodies of those who choose to cross the border that separates the inside and the outside (of the door and of gender).

We have a significant sample that such violence practices operate daily not only on the doors of public restrooms, but through a set of statements surrounding those places, like the speech of state deputy Douglas Garcia when he stated during a session in the Legislative Assembly of São Paulo in April 2019, that: “if by chance inside a woman's bathroom, that my sister or my mother is using, a man who feels like a woman or who may have taken off or put whatever he wants on, enters, I don't care: I'm going to beat him out of there first and then call the police” ( Huffpost Brasil, 2019 ). The deputy also said that it was necessary to respect “the biology and values of our people.” This statement puts at stake a series of meanings that not only make invisible and deny gender identity by erasing the designation “trans-person” or “transvestite” by referring to them as “a man who feels like a woman or who may have taken off or put whatever he wants on,” as it also shows how this issue is crossed by moral arguments, since the deputy uses his supposed family responsibility (as a brother and son) to justify his conduct in face of this type of situation 8 . This is a conduct that, incidentally, also raises not only the violence of what was said—“beat him out of there first and then call the police”—, but also the violence of what was silenced: what was taken off? What was put on? There we have the cynical modesty that forbids the enunciation of the names of the genitalia as a counterpoint to the authoritarian shamelessness to openly incite violence.

As a result, São Paulo state deputy Erica Malunguinho, a trans woman, filed a lawsuit for breaking parliamentary decorum that resulted in a verbal warning against Deputy Douglas Garcia by the Legislative Assembly's Ethics Council ( Huffpost Brasil, 2019 ).

In our theoretical course, we seek to foster possible dialogues between the field of materialist discourse analysis and feminist and gender studies. This dialogue allows us, on the one hand, to take language as the place of materialization of ideological processes ( Pêcheux, 1975/2009 ), to question the logically stabilized universe of discursive constructions regarding events, questioning the functioning of ideology, its contradictions, and the evidence that essentialize the subjects and their effects of meanings in History. On the other hand, the political and theoretical work of Feminist and Gender Studies allows the denaturalization of the notion of identity as something pre-discursive, natural and biological, interrogating the ways in which the subjectivity of the gendered subject is historically constructed. From an analytical point of view, our view goes through several enunciative instances (legal documents, testimonies, audiovisual productions), taking into account the significant specificities. This gesture seeks to work on the events linked to gender violence in its multiplicity, showing the heterogeneity of the discursive processes, their contradictions, dominances, and resistance movements, without any instance overlapping the other.

Considering the aforementioned, this paper aims to address the controversy over the restriction of restroom use according to gender identity by the transgender population 9 , specifically by transgender women. We analyzed some legal aspects of the so-called “bathroom laws” and the main arguments in this discussion, especially those related to the allegations of risk to other women in those bathrooms. We understand that the lack of access or the prohibition of access to restrooms is a type of gender violence that negatively impacts the presence and circulation of transgender people in different social spaces, resulting in segregation and ghettoization of this population. At the same time, we analyze the process that constitute what support such prohibition policies, processes that reinforce historically dominant meanings about masculinity and femininity, and that build the image of a subject-other, upon which meanings of violence (particularly sexual violence) and animality are projected.

Bathroom Law

Safe access to public restrooms is a right and a necessity for participation in civic life, in the workplace, in educational settings and other public spaces. However, many transgender people are afraid to go to bathrooms, as they are exposed to embarrassment (and violence) and may even be prevented from accessing them. This stems from discriminatory practices already socially established and not legally regulated, given the absence of clearer and/or effective laws or legal provisions that protect the rights of transgender people to access these spaces without embarrassment or hostility. Therefore, the right to access bathrooms is fundamental to the fight for equality in the transgender community, which is reveal by the many legal cases that dealing with protection against discrimination that refer to this issue ( Elkind, 2006 , p. 922).

The legal debates about the right to use restrooms by transgender people in the United States add to the set of studies known as the “bathroom law” or “bathroom bill,” which adds legal provisions and analyses ranging from the right to work to the dismantling of the racial segregation experienced in that country 10 ( Rios and Resadori, 2015 , p. 204). Levi and Redman (2010 , p. 133) go so far as to say that “bathroom inequality is one of the greatest barriers to full integration of transgender people in American life.” Rios and Resadori (2015 , p. 204) argue that the accumulation of the American legal debate on “bathroom laws” provides valuable arguments for improving this discussion in the Brazilian context.

Trans-exclusionary bathroom laws (or bills) 11 end up giving new meaning to these equipment by targeting its use exclusively to cisgender people, segregating the transgender population as a result. These discriminatory initiatives reverse the burden of crime, by penalizing trans people who assert their right to use social facilities, instead of penalizing the very discriminatory parliamentary practices that intend to legislate for the exclusion and invisibility of this population. They are usually based not only on a definition of sex as a set of physical characteristics seen as immutable , but also on the legal assignment of sex registered in a person's first birth record. For example, a bill presented in South Carolina—United States— 12 understood that the “ original birth certificate may be relied upon as definitive evidence of an individual's sex.” The emphasis on the original birth certificate as definitive evidence is not accidental, as transgender people, including minors, may have later rectified the assignment of sex in their official documents 13 . The proposed wording therefore implies that even transgender people who have already managed to rectify their documents could not, in theory, use the bathrooms in accordance with their current official documentation, which denies the right to recognition of civil identity and legal status of transgender people.

On the other hand, it is noteworthy that no bathroom law has so far been able to explain how and by whom a person's gender would be effectively verified [ Movement Advancement Project (MAP), 2016 , p. 4] in everyday contexts of using restrooms. This is especially salient for trans-exclusionary laws that are based on a notion of sex as physical or chromosomal anatomy. In this regard, laws that forbid the use of restrooms due to gender identity are impossible to enforce, unless the government is willing to engage in invasive policing of the use of restrooms by its citizens [ Movement Advancement Project (MAP), 2016 , p. 9] or endorse people to informally “watch” each other, promoting a social suspicion environment. Those surveillance practices necessary for the application of trans-exclusionary bathroom laws are based on the idea that it is evident the determination of someone's access to restrooms through bodily characteristics ( Beauchamp, 2019 , p. 106), and that transgender people practice “gender fraud.”

The term “trans-exclusionary” has often been used to specify radical feminist currents that advocate the exclusion of trans women from feminism, which includes the acronym TERF (trans-exclusionary radical feminist) ( Bagagli, 2019 ). This exclusion is based on the basic premise that the fight for rights of transgender people is antagonistic with the rights of cisgender women. In addition to the naming of this feminist current, the use of the expression “trans-exclusionary” is capable of designating an extensive set of transphobic practices that defend exclusion or effectively exclude transgender people from different spaces, which includes, in the scope of the analysis of this work, the exclusion of trans women from the women's bathroom. In this sense, we understand that the exclusion of transgender people due to their gender identities is a form of manifestation of transphobia and/or cissexism. It is not by chance that several trans-exclusionary radical feminists advocate positions favorable to the exclusion of trans women from women's bathrooms. According to Jones and Slater (2020 , p. 835), over the last decade, hostility directed toward trans people from some factions within feminism has monopolized public discourse around the movement and the access to the toilet has thus become a symbol overloaded with significance.

Some authors consider a distinction, although slight, between transphobia and cissexism. While transphobia, for Serano (2016) , implies fear or aversion, broadly, to all identities, expressions, appearances, and behaviors related to gender that deviate from social norms, cissexism is based, more specifically, on the belief that the gender identities of transgender people are inferior or less authentic than the identities of cisgender people. Kaas (2012) , on the other hand, understands that transphobia refers more usually to the most obvious and ostentatious examples of discrimination and violence against transgender people, while cissexism relates to discourses and practices that invalidate transgender identities in a subtler or veiled way.

Free access to the bathroom without the fear of being embarrassed or expelled due to one's gender identity can be described as a form of cisgender privilege. The cisgender (or cissexual) privilege is thought by Serano (2016) through the action of a “double standard that promotes the idea that transsexual genders are distinct from, and less legitimate than, cissexual genders.” The act of gendering, defined by Serano as the process of distinguishing between females and males in which “we actively and compulsively assign genders to all people based on usually just a few visual and audio cues” has a central role in establishing the tacit rules of the use of the bathroom according to gender. The condition of invulnerability to misgendering 14 is, in general, a cisgender privilege. Transgender people, particularly those who “pass” as cisgender, can enjoy conditional cisgender privilege, because although they may have their genders legitimately recognized, this can be threatened from the moment their transgender condition is revealed or addressed. The need to “pass” as cisgender, in the context of using the bathroom, aims to circumvent the stigmas, both visible and hidden, associated with gender non-conformity and is carried out through a continuous act in everyday life ( Kessler and McKenna, 2000 , p. 17).

Preciado (2018) reminds us of the existence of this kind of unwritten law that allows everyone to publicly control femininity, initially through looking and, when in doubt, through the speaking: “hey, hey, you're at the wrong door,” “the men's bathroom is over there,” among other more or less cynical statements that insist on putting the gender “inside the box.” This process of interpellation crossed by the look and the power of the word concerns a complex network that involves those who feel entitled to speak—why would they feel in agreement with their gender?—and approach the other, not anywhere, but exactly where the choice is binary: male or female. In the case of Deputy Douglas' speech, he not only poses himself as a “law enforcement” of the other's gender, but at the same time his argument is justified “by the women” taken care by him: sister and mother, women figures that allegedly need male protection.

Consequences of Hostility Against Transgender People and the Legal Aspects of Using Restrooms

We assume that the laws, measures, and positions that support the prohibition of transgender people accessing bathrooms according to their gender identities are expressions of hostility and discrimination 15 against this group. As Machado (n.d.) points out, hostility toward transgender people, particularly regarding the use of public bathrooms, inhibits not only the use of the bathroom itself, but also the presence and circulation of trans people in several other spaces, including schools, work, and leisure areas. The journalist also points out that failing to go to the bathroom when necessary is one of the risk factors for urinary tract infection, which can affect the bladder, ureters, urethra, and kidneys. The lack of safe access to bathrooms by transgender people is also associated with mental health problems, conditions related to stress, and increased levels of suicidal thoughts and behavior ( Herman, 2013 ).

The binary conception of gender that underlies the spaces segregated by gender ignores or marginalizes those people who do not fit the norms of gender expression, whether they are transgender or cisgender. These people can be seen as being in a “wrong” bathroom, whether male or female. Kogan (2008) understands that the very binary division of bathrooms between male and female impacts on the way bodies and gender identities are interpreted, as this division is seen as the unquestionable evidence that human bodies can only be male or female. Thus, bodies that do not easily fit into this binary classification are considered unacceptable and can be ordered to leave those places. Black transgender people showed higher rates of exclusion and embarrassment in bathrooms than white transgender people ( Herman, 2013 ), which indicates that the fight for the right to access the public bathrooms must also consider race and class ( Patel, 2017 ).

Bathrooms segregated by gender implicitly shows that there are only two possible forms of gender expression and, therefore, restrict public acceptance of transgender individuals who defy social norms ( Rudin et al., 2014 , p. 724). On the other hand, the heightened and recent debate on the use of restrooms by transgender people is also seen with surprise, considering that transgender people have already used public bathrooms for countless years without other people noticing them. But the question here is not only related to the historical existence of trans individuals in society, but to the fact that in the current conditions of production, the conditions of existence, permanence, and circulation of such individuals in the public space go beyond the everyday conversations, and public and private institutions debates. When we turn to the current political scenario in Brazil, we know that the discussion about sexuality and gender goes beyond the walls of epistemological productions and disputes over identifications that have marked the theoretical and activist field in gender and Queer studies (cf. França et al., 2019 ). Such discussion also concerns a reactionary wave that marks the current political debate in Brazil, its electoral platforms and the evangelical groups in the national congress, which have a position regarding what “already existed without people realizing it.” To talk about it means that processes that cross language and history, such as nominations, designations, activism and theoretical productions, videos, poetics and aesthetics, among others, disturb the meanings already established on the issue.

For the United States Department of Labor Occupational Safety Health Administration (2015 , p. 1), restricting transgender employees to only use bathrooms that are not consistent with their gender identity, or segregate them from other workers, requiring the use of gender-neutral bathrooms or other specific bathrooms, isolate these employees, and may make them fear for their physical safety. As a result, the agency recommends that all workers, including transgender workers, should be able to access bathrooms that match their gender identities. However, in the United States, measures that protect access to the bathroom by transgender people vary by state, and there is no federal law associated [ Movement Advancement Project (MAP), 2016 ]. The controversies generated by the use of restrooms by transgender people have unfortunately been used for some employers to fire transgender employees (particularly those who start their gender transitions after being employed) or to avoid hiring them, aggravating discrimination, and social exclusion.

A survey ( James et al., 2016 ) carried out with 28,000 transgender or diverse gender people, with 18 years old or more in the United States in 2015, showed the following situations experienced up to 1 year before the research: 48% sometimes avoided and 11% always avoided using the bathroom, totaling 59%; 32% limited their drinking habits to avoid using the bathroom; 24% had their presence in a particular bathroom questioned or challenged; 12% were verbally harassed, physically attacked, or sexually abused when accessing or using a bathroom; 9% had access to the bathroom effectively denied, with undocumented residents (23%), and interviewees working in the clandestine economy (20%) (such as sex work, drug sales, and other currently criminalized jobs) being twice more likely to be denied access to restrooms than the general sample; and 8% reported having a urinary tract infection, kidney infection or other kidney-related problem as a result of avoiding using the bathroom.

Rios and Resadori (2015 , p. 200) cite judicial cases (until 2014; Brasil, 2014 ) of Brazilian trans or transvestite women who were prevented from using public female restrooms and had their indemnity lawsuits denied by the State due to the understanding that they would not have suffered discrimination, embarrassment, psychological, or moral harassment. This understanding, however, is based on the premise that transgender and transvestite women are “in fact” men, and therefore could not denounce the impediment to accessing the women's bathroom as discrimination. On the other hand, transsexual and transvestite women have also won victories in their claims for moral damages due to the restriction of using women's bathroom, showing that these decisions still diverge in the Brazilian courts.

The Brazilian Supreme Court (STF) recognized in 2014 that the use of bathroom by transgender people is a general repercussion thesis resulting from the Extraordinary Appeal ( Recurso Extraordinário —RE) (845779), which, in turn, seeks to reform the Court of Justice of Santa Catarina (2012) decision that had dismissed an indemnity lawsuit for moral damages to a transgender woman that was forbidden to enter a female bathroom in a shopping center and who, shaken by what happened, ended up urinating in her own clothes, in front of everyone there ( Rios and Resadori, 2015 , p. 203). The Court of Justice of Santa Catarina (TJ-SC) understood that there was no moral damage, but “mere dissatisfaction” ( Notícias STF, 2015 ). The legal question, therefore, is to determine whether the requirement that a transgender person use designated to the gender they do not identify with is an offensive conduct against the dignity of the human person and personality rights, and therefore indemnifiable as moral injury ( Notícias STF, 2014 ). Rios and Resadori (2015 , p. 210) argue that simply ignoring transsexuality in a space as meaningful and vital as public bathrooms implies disregarding or excluding transgender people due to their gender identities and also hurting the heart of the constitutional protection of human dignity.

However, the lawsuit has not been completed so far, as it was interrupted in 2015 by a request for a review from Minister Luiz Fux ( Notícias STF, 2015 ). At least 778 similar cases, currently suspended, would be concluded with the decision of the RE ( Notícias STF, 2015 ). One of the justifications for this request for review and this interruption is that the matter would generate, according to the minister, a “reasonable moral disagreement” so that “social opinion” should be considered on the topic. Minister Luís Roberto Barroso had proposed the following thesis for general repercussion: “transsexuals have the right to be socially treated according to their gender identity, including the use of public bathrooms.” The opinion of the Attorney General's Office had also concluded that “it is not possible for a person to be treated socially as if they belong to a different sex from which they identify with and present themselves publicly, as sexual identity finds protection in personality rights and dignity of the human person.”

Carvalho Filho (2015) is surprised before Minister Fux's argument, because, according to the author, there is no glimpse of reason in an eventual moral disagreement in view of the inexistence of a plurality of constitutionally legitimate options in the case under analysis. The author points out that reasonable moral disagreements are constituted by the “lack of consensus on controversial topics whose antagonistic solutions are constructed as rational products,” thus involving “diverse positions that coexist within society,” but which are equally legitimate constitutionally.

The absence of a determination by the Supreme Court of Brazil on this issue allows for municipal laws to be passed aimed at forbidding the use of restrooms by transgender people according to their gender identities, such as Law No. 7,520 of Campina Grande (Paraíba) signed on May 25, 2020 by Mayor Romero Rodrigues ( Campina Grande, 2020 ), which, by prohibiting the “interference of ‘gender ideology 16 , in public and private elementary schools,” had determined that the use of bathroom, locker rooms, and other spaces in schools should “continue to be used according to the biological sex of each individual, with any interference of the so-called ‘gender identity' being prohibited,” and establishing fines to the School Manager or the school owner (if private) if the law was not met. However, a preliminary decision granted by the Justice in a public civil action filed by the Human Rights Nucleus of the Public Defender of the State of Paraíba on June 10, 2020 annulled the application of fines to schools in Campina Grande that allow the use of bathrooms in accordance with the gender identity of young transgender or diverse gender people and also determined that students can use bathrooms in accordance with their gender identities ( G1 PB GLOBO, 2020 ). Another similar municipal law, in Sorocaba (São Paulo), was considered unconstitutional by the São Paulo Court of Justice ( Viapiana, 2019 ).

Despite the absence of a comprehensive and nationwide resolution, it is noteworthy that Resolution No. 12 of the National Council Against Discrimination and for the Rights of Lesbians, Gays, Transvestites, and Transsexuals of January 16, 2015 ( CNCD, 2015 ), when establishing the parameters to guarantee the conditions of access and permanence of transvestite and transsexual people in educational systems and institutions, decided that the use of bathrooms, locker rooms, and other spaces segregated by gender must be in accordance with each person's gender identity. Within the specific scope of the Federal Public Ministry (MPU), Ordinance No. 7 of March 1, 2018 of Attorney General's Office of Brazil establishes that the use of bathrooms, locker rooms, and other spaces segregated by gender is guaranteed according to each individual's identity. This ordinance includes service users, members, employees, interns, and outsourced workers under the MPU ( Brasil, 2018 ).

On October 14, 2020, the Attorney General's Office (AGU) sent an appeal (embargoes of declaration) to the Supreme Court of Brazil to clarify points of the trial that framed homophobia and transphobia within the racism law. The AGU seeks to find out to what extent the criminalization of prejudice against LGBT people affects religious aspects. The Supreme Court's decision had already determined that “freedom was ensured so that religious leaders can argue in their cults that homoaffective conduct is not in accordance with their beliefs, as long as such manifestations do not constitute hate speech, thus understood the externalizations that incite discrimination, hostility or violence against people because of their sexual orientation or gender identity” ( Folha de S. Paulo, 2020 ). According to Amparo ( Folha de S. Paulo, 2020 ), the federal government intends to expand exceptions to the criminalization of homophobia and transphobia. One of the points that the AGU demands explanations for refers precisely to “the control of access to certain places open to the public (such as bathrooms, locker rooms, penitentiary establishments, and public transportation wagons)” and understands that “the control of access to certain places open to the public based on physiobiological aspects should not be characterized as an act of racism when the restriction of entry has been established in favor of protecting the privacy of vulnerable groups,” assuming, therefore, that “the access to public spaces can be organized based on the physiobiological criterion of gender, and not on the social identity of the user” ( Advocacia-Geral da União, 2020 , p. 36–37).

In the USA, most trans-exclusionary bathroom bills are not approved, with the notable exception, for example, of the House Bill 2 (HB2) in 2016 in North Carolina, which determined that individuals should use the bathroom that corresponded to the sex originally assigned on their birth certificates in this state. This law was a response to a regulation ( ordinance ) in the city of Charlotte that had established anti-discrimination measures that included using the bathroom according to gender identity. In 2017, HB2 was revoked by House Bill 142, which, however, also vetoes local governments to approve anti-discrimination measures for the use of bathrooms until December 1, 2020 ( Barnett et al., 2018 , p. 233). The Trump administration recently caused the U.S. Department of Justice to rescind the Obama administration's position that established that non-discrimination laws require schools to allow transgender students to use bathrooms that match their gender identity ( Peter et al., 2017 ).

Lopes (2017) and Wilson (2016) understand that the fear spread around the use of bathrooms by transgender people was a widely popular strategy used by conservatives to stop measures aimed at combating discrimination against LGBT people in the United States. It is worth remembering that access to bathroom is part of the protections against discrimination, but anti-discrimination measures or laws address more issues than just this one [ Movement Advancement Project (MAP), 2016 , p. 2]. For Wilson (2016 , p. 1386) “the bathroom narrative has emerged [since 2008] as the main rhetorical weapon against protecting LGBT people from discrimination in public places [in the United States].”

When we look back at the arguments that support trans-exclusionary legal measures, we face many evidence based on a pre-discursive conception of sex, in Butler's (1990/2017) terms, the idea that sex is a gross matter, unquestionable, linked to nature, therefore excluded from the social context, where gender would fit in. At the same time, such arguments are produced within a contradiction that arises from the imaginary around masculinity and femininity that constitute the “bathroom narratives”: the idea that women are defenseless and men are aggressive by nature; then, we face a set of attributes that makes the social and the nature contexts not that far from each other. Thus, perceiving the way sex is part of the argumentative plot of such measures is one of the ways of realizing two mechanisms that work together, one supporting the other: (1) a transphobic ideological process based on the very denial of ideology to make nature as the only truth of things and (2) a process of sedimentation of cisnormativity by dichotomizing and naturalizing what would be biologically feminine vs. what would be biologically masculine.

Trans-Exclusionary Positions on the Use of Restrooms

We can identify two aspects of trans-exclusionary positions in relation to the use of women's bathrooms: (1) the defense of laws or measures that effectively aim to prohibit the access of trans people to restrooms according to their gender identities (trans-exclusionary bathroom laws); and (2) opposition to laws or measures that explicitly guarantee access for transgender people to bathrooms according to their gender identities without constraint or discrimination (trans-inclusive bathroom laws). Thus, we infer that positions that defend trans-exclusionary laws necessarily oppose to trans-inclusive measures; however, not all positions that oppose the establishment of trans-inclusive measures necessarily advocate explicitly trans-exclusionary measures.

We will see next how dominant meanings regarding masculinity and femininity support what we call here trans-exclusionary arguments regarding access to public bathrooms. The violence argument is a constant in this discussion, although statistics show that there is no concrete data to prove that trans people are a threat or participate on acts of violence against users of women's bathroom. So, why do such arguments continue to support argumentative and, therefore, discursive processes that segregate and exclude transsexual women not only in public bathrooms, but in the many social practices and spaces? We know that Brazil has a history of violence crossing the relationship between women and the public space, and our political and theoretical position about it does not deny or erase such historicity. On the contrary, it allows us to think about how the violence acts at the intersection between historical determinations involving gender, sexuality, race, and class around the condition of abjection 17 .

Some proposals of apparent consensus aim at the creation of a third bathroom, which would then be destined for transgender people at the expense of the use of female (in the case of trans women) and male (in the case of trans men) bathrooms. However, despite the possible use of these bathrooms by transgender people whose gender identities do not fit into gender binarism and as an intervention that proposes to legitimately question the binary division of restrooms (without assuming that transgender people should be forced to use only neutral bathrooms) this proposal is potentially problematic. According to Elkind (2006 , p. 927):

The proposal for a third category of gender neutral facilities is not the solution. The proper means of attaining transgender equality is not to segregate the group into an extraneous “other” category, but to treat transgender individuals as the majority is treated and to permit each person bathroom access based on his or her gender identity. Gender neutral bathroom access is both cost prohibitive and ignores the underlying problem faced by transgender individuals with respect to bathroom access. Individuals should be considered as members of the gender group with which they identify and not as an abnormal “other” denied recognition among existing societal groups. Creating a third group of gender neutral bathrooms for transsexuals only bolsters the assertion that such individuals do not “fit in.”

One of the arguments for transgender people to not use the bathrooms according to their gender identities is that it could generate some kind of embarrassment for other people (presumably cisgender) using the space ( Rios and Resadori, 2015 ), or even that security, specifically in the case of women's bathrooms, could be impaired 18 . Whether for security or privacy 19 , the underlying message that emerges in these speeches is that trans people are disregarded on the one hand in relation to their affections (why would they not feel embarrassed?), and, on the other hand, perversely stigmatized, because they are considered sexually threatening 20 ( Levi and Redman, 2010 , p. 144). The legislative position that conceives transgender bodies as threats requires complicity with pervasive practices of surveillance in bathrooms, which spread, at the same time, the idea of cisgenerity as the standard of normal bodies, easily interpretable and inherently compatible with the use of bathrooms without constraint ( Beauchamp, 2019 , p. 106). From this perspective, the access of transsexual and transvestite women to women's bathrooms would mean the supposed permission for “men” to also access these spaces (assuming, with this discourse, that transsexual and transvestite women are simply men because they share some biological characteristics) and eventually abuse other women in bathrooms.

It is relevant to point out that, for positions that do not conceive transgender women as men, the claims that measures aimed at guaranteeing trans women access to women's bathrooms would allow men to access women's bathrooms make no sense. In a consensus statement [ National Task Force to End Sexual and Domestic Violence against Women (NTF), 2018 ] against laws that prohibit the use of bathrooms due to gender identity signed by more than 300 U.S. organizations that fight against sexual and domestic violence, we read that:

Nondiscrimination laws do not allow men to go into women's restrooms—period. The claim that allowing transgender people to use the facilities that match the gender they live every day allows men into women's bathrooms or women into men's is based either on a flawed understanding of what it means to be transgender or a misrepresentation of the law.

Also according to the declaration, the idea that protection for transgender people (including using the bathroom without constraint due to gender identity) harms the privacy and security of other users is a myth. Several critics point out that there is no evidence that non-discrimination policies or that explicitly allow transgender people to use restrooms according to their gender identities have led to an increase in the number of sexual harassment cases in bathrooms and women's locker rooms anywhere in the world ( Doran, 2016 ; Hasenbush et al., 2019 ). States (19) and cities (more than 200) in the US that have passed laws against discrimination against LGBT people show that such measures have not caused any increase in incidences of crime in bathrooms ( Maza and Brinker, 2014 ). This is not surprising, given that the approval of protections against discrimination has no impact on existing laws that criminalize violent behavior in bathrooms. In the absence of real incidents to base trans-exclusionary bathroom policies, anti-trans groups fabricate horror stories about trans-inclusive bathroom policies ( Maza, 2014 ).

Security and privacy in the use of public restrooms are certainly important for everyone—including transgender people. Arguments that unilaterally conceive the access of transgender people to restrooms according to their gender identities as a risk factor for the safety of other people assume, even implicitly, that the transgender population does not deserve to be protected under the same standards as the cisgender population. This is particularly alarming, given that research shows precisely that young transgender people are exposed to much higher rates of violence in US schools' restrooms ( middle and high school ) than young cisgenders ( Murchison et al., 2019 ).

The safety in the use of restrooms can only be effectively compromised through attacks by abusers, so it is misleading to simply assume that transgender people, especially transgender women, commit these crimes or are essentially more predisposed to commit such crimes only because they access women's bathrooms or for not having explicitly denied their access to women's bathrooms by law or regulation. It is worth remembering that sexual harassment and rape are already considered crimes, so it does not seem reasonable to create new laws to curb crimes that have already been typified. Violence cases can happen and/or happen in restrooms regardless of the approval of trans-inclusive bathroom measures or laws. People should be held responsible for any crimes in bathroom spaces regardless of gender identity, whether transgender or cisgender, and which people (or groups of people) have access to a particular bathroom. Among bathroom attack cases, only a small number of cases actually involved transgenders, people who 21 falsely claimed to be transgender or perpetrators who tried to disguise themselves as a member of the opposite sex to gain access to the bathroom ( Barnett et al., 2018 , p. 235). Thus, the idea that it is necessary for individuals to use bathrooms according to the gender assigned to them at birth to ensure safety in these spaces is inconsistent and disproportionate. In this sense, Davis (2018 , p. 206–207) makes the following questions:

The assumption that sex-segregated public bathrooms protect women from physical assault is flawed in two ways. First, sex-segregated restrooms only serve as a barrier to physical assault if one's attacker is of the opposite sex. Secondly, if someone is already willing to break laws to commit criminal assault, it is likely that the person will break another law to enter a women's restroom with little or no hesitation. Public restroom sex-segregation is not the best, or even a rational, way to address the very real and important matter of anti-female violence. Even worse, the misconception of women's restrooms as places of refuge may lull many women into a false and dangerous sense of personal safety when they enter those rooms.

Despite the recent spread of the “bathroom predator” ( Schilt and Westbrook, 2015 ; Fitzgerald, 2016 ) in the social imaginary and its impact on bathroom laws, it is noteworthy that most US citizens are opposed to measures that would effectively force transgender people to use a bathroom in disagreement with their gender identities ( Wilson, 2016 , p. 1388). This discrepancy does not seem to us to be fortuitous, since it indicates the presence of an ambivalence in the speeches that defend the prohibition of the use of the feminine bathroom by transgender women or that conceive the access of transgender women to the feminine bathrooms as a risk factor for security.

People who report some kind of fear regarding the access of transgender women to the women's bathroom may simultaneously recognize that it would be wrong, on the other hand, to force trans women to attend the men's bathroom. Many still admit that it would not be transgender women who would actually commit sexual crimes in restrooms, rejecting the idea that this particular group (transgender women) would directly represent a risk factor for safety in the bathrooms, but rather the men who would falsely claim being transgender women, that is, men who would somehow inadvertently benefit from anti-discrimination measures to commit such crimes. In this way, abusers would supposedly have facilitated access to victims by measures that guarantee access for trans women to women's bathrooms and/or the sheer absence of measures that explicitly prohibit access for trans women to women's bathrooms.

In a statement by the Massachusetts Family Institute (MFI) ( Levi and Redman, 2010 , p. 142) against anti-discrimination laws on bathroom use, we read that “there is no way to distinguish between someone suffering from ‘Gender Identity Disorder' and a sexual predator looking to exploit this law.” If we assume that there would be no way to “distinguish” transgender women from sexual predators, we are very likely to conclude that it is necessary to prohibit transgender women from accessing women's bathrooms because of the maintenance of security. However, if we really wanted to apply this argument without a cisnormative bias, we would have to the same extent recognize that we could not also distinguish, in an absolutely unequivocal way, cisgender women from sexual predators. The fact that we cannot guarantee with absolute unmistakability who may or may not be a potential “sexual predator” seems to have a burden only for transgender women. In this sense, under the operation of the most elementary evidence in relation to gender, we are not equally likely to conclude that female cisgender women should no longer share the use of the female restroom due to the possibility of female cisgender women committing crimes or being “sexual predators” in the bathrooms in the same way as we do with transgender women. These cisnormative biases, therefore, should not go unnoticed without critical analysis when discussing these arguments. Jones (2015) exposes this bias as follows:

In most cases, we understand that allowing any group of people into a given place means that some small fraction of them might commit crimes, and we accept that the benefits of their being able to access that place outweigh the potential risks. Cis women have assaulted cis women in restrooms, yet nobody takes this as a reason to ban all cis women from women's restrooms. Imposing that kind of inconvenience on all cis women is obviously unacceptable, but imposing it on trans women is totally okay for some reason. (The reason is transphobia.)

If we assume that the absence of laws or measures that forbid access for trans women to women's restrooms is in any way an incentive for sexual predators to pretend to be trans women to access their victims in those places, then we should face such cases on a daily basis, considering that most countries or states around the world do not actually have laws or measures that explicitly prohibit transgender women from accessing women's restrooms, nor do they have measures that establish ways to effectively bar trans women from accessing restrooms or checking whether the women who are accessing those bathrooms had the female gender signed on their first birth certificate. However, this does not appear to be the case, given that there is no evidence that the absence of laws or measures that prohibit the use of the women's bathroom by trans women may in fact represent a risk factor for safety in these spaces, nor that approval of measures against discrimination against transgender people in bathrooms has some impact on the chance of people violating criminal laws regarding rape and sexual harassment. Jones (2015) makes the following question: whether under trans-inclusive laws sexual predators can pretend to be transgender women to access the women's bathroom, which would prevent them, under trans-exclusionary laws, from pretending to be transgender men to access the same women's bathrooms? According to Wilson (2016 , p. 1401) the connection between the supposed implications of safety in restrooms and the guarantee of access for trans women to women's bathrooms rests in a “cascade of factual assumptions” about “ situational and preferential sex offenders” that could attack victims in facilities segregated by sex.

In a statement ( Arter, 2015 ) of a campaign against a Texas ordinance that would allow the use of restrooms according to gender identity, we read that:

[This] Bathroom Ordinance would force businesses and public establishments to allow troubled men, or men who want to start trouble, to use women's public bathrooms, locker rooms and shower facilities. This endangers women and girls and places them in harm's way. There are 8345 registered and convicted sexual predators in Harris County. This just scratches the surface of this dangerous problem. These men could use this ordinance as a legal shield to threaten our mothers, wives and daughters.

Assuming that trans-inclusive bathroom laws allow “condemned sexual predators” to access women's bathrooms, this discourse produces a series of equivalence substitutions between the following elements: transgender women > men > problematic men > condemned sexual predators. The access of “condemned sexual predators” to women's bathrooms is a possibility condition for them to be able to commit sexual crimes against women in these spaces, which seems logical to conclude that it is necessary to reject trans-inclusive bathroom laws to curb attacks in women's bathrooms. Furthermore, this statement takes on the face of a masculine law, unable to conceive women simply as “women,” and not already interpreted from the social roles that supposedly link them to a man: as mother, wives, and daughters.

We propose to look at the implicit thought that transgender women are men from a pre-built idea ( Pêcheux, 1975/2009 , p. 159), which is understood as a content already produced, something that “everyone knows,” as well as what “everyone in a given situation can be and understand, under the evidence ‘of the situational context.”' The successive substitutions that associate transgender women with a condemned sexual predator and the consequent production of cause and consequence effects (the accessibility of transgender women to women's bathrooms causes the vulnerability of cisgender women allegedly exposed to attacks by sexual predators in women's bathrooms) can be understood from the notion of a transversal discourse. For Pêcheux (1975/2009 , p. 152), the transversal discourse functions as a sequence that perpendicularly crosses another sequence that contains replaceable elements (in our case, transgender women vs. condemned sexual predators ). This transversal discourse produces the evidence that certain biological characteristics shared between transgender women and condemned sexual predators (notably the presence of a penis and other possible physical attributes associated with the male sex) expresses a necessary condition for the practice of sexual crimes in bathrooms as if it were necessary to have these biological characteristics 22 to practice such crimes in women's bathrooms. This is able to explain, on the other hand, the absence of similar concerns regarding the presence of transgender men, whether in men's or women's bathrooms, as well as the very assumption that cisgender women pose no threat to themselves. According to Schilt and Westbrook (2015 , p. 30):

In contrast, transgender men—assumed by critics to be “really women” because they do not possess a “natural” penis—are relatively invisible in these debates. Transgender men are mentioned directly by opponents only once in all of the articles we analyzed. (…) Transgender men are never referenced as potential sexual threat to women, men, or children. Instead, they are put into a category that sociologist Mimi Schippers labels “pariah femininities.” They are not dangerous to cisgender women and children, but they also do not warrant protection and rights because they fall outside of gender and sexual normativity.

A statement against the Department of Justice under the Obama administration (which argued that HB2 violated federal law) says that “apparently, the Department believes that these obvious social costs are outweighed by the policy's purported psychological benefits to persons of conflicted gender identity” ( Kogan, 2017 , p. 1231). The statement assumes that the use of restrooms by trans people according to their gender identities implies an “obvious social cost” and implies that the supposed psychological benefits for trans individuals would not outweigh “obvious social costs” (in this position, risks regarding security or privacy violation) of a trans-inclusive policy. Transgender gender identities are qualified as “conflicting.”

Assuming that the “costs” that transgender women would suffer are preferable to those that cisgender women would suffer, we can consider the functioning of a valuation scale in which the protection of the dignity of cisgender women is ahead of transgender women. This cost-benefit calculation projects onto trans people an idea of second-class citizens ( Beauchamp, 2019 , p. 86), as well as the intrinsic vulnerability of cisgender women. When we also consider race, class and/or social situation (see James et al., 2016 , p. 225), we understand that black and/or non-white transgender women, in a situation of social vulnerability and/or poverty, and also when those women do not “pass” as cisgender, they are the base of the discrimination scale. According to Beauchamp (2019 , p. 98):

Legislative and public discourse on the transgender threat to other gendered bathroom users draws on familiar viewing practices that simultaneously claim bodies as objective, apolitical data points (we can easily know which bodies are women's bodies) and reiterate a decidedly social and political meaning given to different types of bodies (women's bodies are vulnerable and need special protection). Certain women's and children's bodies will more readily signal vulnerability, a point that public bathrooms themselves underscore, since the history of bathroom segregation rests largely on the protection of white women.

In this direction, another relevant aspect to the scale concerns the family and/or personal connection of a woman with a man. This is justified because of the roles attributed to women as mothers, daughters, sisters, and wives in speeches of men who believe they need to protect them from the supposed dangers resulting from trans-inclusive bathroom laws. In the hegemonic imaginary, men are conceived as potential protectors of vulnerable people with whom they have personal ties; and a potential source of sexual threat to other people, notably other women ( Schilt and Westbrook, 2015 , p. 31). According to Blumell et al. (2019 , p. 383) the protection of cisgender women in the context of using the women's bathroom is seen as dependent on certain conditions, including:

(a) The defender has a personal relationship with the woman (wife or daughter), which situates her welfare within her importance to an individual man; (b) the threatening man is seen as non-normative, deviant, and uncontrollable, in perpetuation of the stranger danger rape myth ( Weiss, 2009 ); and (c) the woman being protected is cisgender, monogamous, and heterosexual, revealing an implicit assumption that “good” women who have men to protect them will not be raped. Transwomen, by contrast, were not seen as needing protection because of their deviance and presumably masculine strength.

By basing trans-exclusionary positions on individual references that guide the family and/or personal ties, we observe a universalization effect from this male point of view regarding the ideas of protection, vulnerability, and danger. That is, successive precepts and notions from one individual evolve (which, in this case, coincides with the male position that maintains concrete ties with a specific daughter, wife, mother, or sister) to the production of a universal subject, operating an erasure of the preceding concrete situation, which would then start to think through concepts and abstractions (capable, therefore, of creating laws). This operation is named precisely by Pêcheux (1975/2009 , p. 117) as the empirical-subjectivist continuist myth . For the author, this myth is based on the identification process: “if I were where you/he/x are, I would see and think what you/he/x see and think” ( Pêcheux, 1975/2009 , p. 118). In this case, we move from the need to protect the daughters, wives, mothers or sisters of an individual subject to the need to protect the daughters, wives, mothers or sisters of other men to any and all women. Under this specular game, there is a tension that cannot be resolved, since it is to be assumed that the same man who protects women with whom he has family ties represents a potential danger for other women with whom he does not have those ties. This process culminates in the defense of trans-exclusionary bathroom laws, under the supposed evidence that each and every woman is vulnerable to the attacks of each and every man and needs to be protected (sustained perception under the equivocal universalization of the expectation that every woman has a family or personal relationship with a man, or that every woman should have a relationship with a man to ensure her protection).

Another argument used to support trans-exclusionary positions concerns the number of people:

Are we to risk the safety of millions of women and children in public restrooms because an extremely small number of people are experiencing a mismatch between their psychology and their biology? Good public policy does not risk the physical safety of women and children because an extreme few have a preference for a different bathroom. ( Turek, 2016 ).

Thus, the claim that there are an infinitely larger number of cisgender people corroborates the position that the supposed “costs” regarding the security of cisgender women would be, to the same extent, much greater than the “costs” regarding the security of transgender women. However, the considerations, for example, of the Federal Public Ministry of Brazil ( Ministério Público Federal, 2015 ) provide universal constitutional guarantees, that is, arguments based on the quality of the person and not on the number of people. We observe that by understanding that gender identity is essential for the dignity and humanity of each and every person and should not be a reason for discrimination or abuse, in order to conclude that preventing the use of restrooms is the same as denying gender identity, thus violating the dignity of a transgender person.

This thing, in particular, of using the women's bathroom, is a very delicate thing for me. Life has made me strong, but at the same I have my traumas, I have my ways to do things, I am full of… […] You, woman, who is watching this right now, put yourself in my shoes, as if you were a transvestite. Can you imagine how it is to go into a women's restroom and get kicked out? I have already been taken out of a toilet with my panties down, thrown out like an animal. I called the police, nothing happened, the police didn't even go. […] (Luísa Marilac 23 ) 24

The band Filarmônica de Pasárgada released a music video in 2014 for the song “Fiu” 25 , a Brazilian funk that takes place in a shed that looks more like a butcher shop located in a train station, in which people in bloodstained clothes dance and cut several pieces of meat. At a given moment in the video, the central door opens and the cartoonist Laerte Coutinho, a trans woman, appears and steps slowly across the room, decorating herself with necklaces, pinning her long hair, dancing, even though sometimes the music stops and everyone looks at her, examining her body and her presence with strangeness, or when retouching her makeup, a jet of blood splashes over her face. At this moment, Laerte cleans herself and looks at the bathroom door on which a female pictogram is printed, but under the symbol where the word “female” is supposed to be written, the first syllable “fe” is cut, so that it appears written just “male.” The writing marks the mistake that involves a space destined for the entry and exit of bodies crossed by a signifier subject to drifts, erasures and mistakes around the signified. It is neither male nor female, but “male,” a signifier-other that borders on the real of what is already written with such incompleteness (Cf. Milner, 1978/2012 ).

Elza Soares has long sung that “the cheapest meat on the market is the black meat,” and rightly so, we know that in this world of human beings, we need to turn some people into “meat” because the condition of humanity before being a genetic, biological or natural data is the combination of historical determinations around ethnicity, race, class, gender and sexuality. The way the State calculates its “costs”—which weighs a lot or a little on the social balance about who is more or less of a citizen—proves how unequal the condition of human being is in this world (which is not one). When Butler (2009/2016) thinks about the unequal distribution of humanity, she wonders which frameworks shape certain lives as precarious and under what conditions it becomes difficult or even impossible. In this discussion, the body is immersed in the disciplinary and normalizing processes that shape recognition, but what is also at stake is what break the rules, which embarrasses the eye and escapes the classifications. From the discursive point of view, we also see in Pêcheux (1982/1990) an investment not only in the mechanism of the dominant ideology, but in the failures, the contradictions, in the sinuous movements of the senses (and of the subjects).

When Luísa Marilac, in her outburst, proposes: “You, woman, who is watching this right now, put yourself in my shoes, as if you were a transvestite,” she summons at the same time the limits of the identification processes, but also the relationship that is established between a place and a non-place. Bringing up the everyday mechanisms by which the restroom participates in the excluding functioning of cities, composing one of the non-places for trans subjects, is a practice of denunciation, among others, but it is also the establishment of places of enunciation , not just those in which the subject is (not) said, but also those in which they can say. When thinking about the relations between the places of enunciation and the discourse, Zoppi-Fontana (1999/2003) tensions the division of the right to enunciate and the effectiveness of this division in its effects of legitimacy, truth, credibility, authorship, identification, and circulation . This proposal is based on a theoretical affiliation to Discourse Analysis as proposed by Pêcheux and more specifically to the notion of subject position ( Pêcheux, 1975/2009 ), considering the way in which the figure of ideological interpellation is central to this concept, but also in the way the subject of the discourse is thought through a contradictory relationship with such processes of interpellation. This allows us to problematize how historically subordinate and silent places emerge, interfering in stabilized directions. Thus, when Luísa Marilac and Maria Clara Spinelli, among many others, go public to expose their pains, their traumas, their “tics,” there is something beyond what is said about a given event: emerges a subject who asserts themselves in that place of subject. The event overflows: it is about saying who enters and who is kicked out, who can and who cannot, who looks and who is looked at.

This surplus in the event, which refers to the encounter between a memory and a current event ( Pêcheux, 1983/2012 ), concerns to the fact that talking about the process of construction of meanings that constitute the laws of access to public restrooms for trans individuals is also touching on the many stabilized speeches that produce:

1. The erasure of trans subjects in the legislative discourse, which both by constrains and by calls for security, builds, on the one hand, a subject without affection, on the other, a sexual predator;

2. The naturalization of biological arguments, which, taken as the crude truth that precedes the discourse, work at the service of the cisgenerity imperative, taken as the sheer transparency of bodies and a dominant imaginary about masculinity (aggressive and protective) and femininity (vulnerable and incapable);

3. The political and theoretical reaction that runs through activist, institutional and intellectual production, but also daily practices through actions of repudiation, reports, complaints, texts, videos, and other material that come into dispute, claiming a dignified existence in the social environment.

The attempts, whether judicial or informal, to restrict the use of restrooms according to the users' gender identities or expressions should therefore be seen as ways of regulating and perpetuating the cisnormative binarism of gender. In this respect, the expulsion and embarrassment of transgender people in restrooms can be understood as a way of punishment for the transgression of gender norms ( Bender-Baird, 2016 , p. 987) and as such they must be combated to guarantee equity of rights desirable in a democratic and plural society that respects human dignity.

Author Contributions

All authors listed have made a substantial, direct and intellectual contribution to the work, and approved it for publication.

This paper was partially carried out with support from CNPq, National Council for Scientific and Technological Development—Brazil, research productivity grant, process 307842/2017-7 and doctorate scholarship, process141740/2015-9; and with the support of CAPES (Coordination for the Improvement of Higher Education Personnel), PROEX program (Academic Excellence Program), doctoral scholarship, process 88887.388183/2019-00.

Conflict of Interest

The authors declare that the research was conducted in the absence of any commercial or financial relationships that could be construed as a potential conflict of interest.

Acknowledgments

The authors thank Espaço da Escrita — Pró-Reitoria de Pesquisa — UNICAMP —for the language services.

1. ^ https://www.youtube.com/watch?v=VJ_EuQHNm6E

2. ^ Maria Clara Spinelli is a theater, film, and television actress. She was the first transsexual actress to play a character of a cisgender woman on Rede Globo, in the soap opera A força do querer (2017).

3. ^ Expression by Lauretis (1989) to define the set of institutions and practical techniques and functions that (re)produce the truth of masculinity and femininity ( Lauretis, 1989 ).

4. ^ On the one hand, we consider, from a discursive perspective, the constitutive relationship between the city and the subject ( Orlandi, 2004 ), on the other hand, we also take into account the dialogues that such relations generate between Linguistics and History with respect to coercions and transgressions in the gender field (Cf. Chaves, 2015 ; Cestari, 2015 , among other works developed in the Women in Discourse Research Group. https://www.iel.unicamp.br/br/content/mulheres-em-discurso ).

5. ^ Historically, it is not difficult to think that this type of statement supports practices of violence that pervade several enunciative instances marked by unowned statements: “I don't know why I'm beating, but you know why you're being beaten,” “you were asking to be raped,” etc., in which an alleged knowledge of the victim participates in the network of arguments that support the aggressor's violence.

6. ^ As Preciado (2018) points out: “[…] Two opposing logics dominate the women's and men's restrooms. While the female bathroom is the reproduction of a domestic space in the middle of the public space, the male bathroom is an addendum to the public space, in which the laws of visibility and upright position are intensified, which traditionally defined the public space as a space of masculinity. While the women's bathroom operates as a mini-pan-optic, in which women collectively monitor their degree of heterosexual femininity and in which every sexual approach results in male aggression, the men's bathroom appears as a breeding ground for sexual experimentation.”

7. ^ https://www.select.art.br/lixo-e-genero-mijar-cagar-masculino-feminino/

8. ^ In this sense, it is also recurrent, in the speeches that discuss access to the women's bathroom for trans women, that the male enunciator takes a position occupying roles that express a family and/or personal relationship with women, such as the position of father and husband , saying that it is necessary to protect, for example, their daughters and wives from possible “sexual predators” in the bathrooms. We will also address this aspect later.

9. ^ We assume the definition of a transgender person as someone who does not identify themselves with the gender originally assigned to them at their birth, including, therefore, transsexual women and men. The considerations we make regarding the use of the female bathroom by transgender women in this article also apply, considering the Brazilian socio-cultural context, to transvestites, as this group also has a feminine gender identity and demands the use of the feminine bathroom, as well as transgender women. We use the expression “cisgender people” to designate people who are not transgender, and cisnormativity as the norm that establishes cisgenerity (the condition of cisgender people) as the desirable social standard.

10. ^ The arguments that supported racial segregation during the Jim Crow laws in the United States are analogous to arguments in favor of trans-exclusionary positions, as they both harbor similar fears about the need to protect women and children from a group of people perceived as capable to corrupt public morals, health, and order ( Pogofsky, 2017 , p. 753).

11. ^ We designate “trans-exclusionary bathroom laws” those laws that aim to prohibit the use of restrooms by transgender people according to their gender identities, and “trans-inclusive bathroom laws” those laws that aim to guarantee access to restrooms for transgender people according to their gender identities.

12. ^ Senate Bill 1306, South Carolina General Assembly 121st Session, 2016, http://www.scstatehouse.gov/billsearch.php?billnumbers=1306&session=121&summary=B .

13. ^ It is relevant to consider that access to rectification of official documents for transgender people may vary according to the legislation of each country and that minors in general may have to face greater bureaucracy and stricter legal requirements than trans adult people.

14. ^ Misgender is the act of mistakenly assigning a gender that does not match someone's gender identity.

15. ^ Levi and Redman (2010 , p. 136) understand that forcing a transgender person to use a bathroom that is inconsistent with their gender identity is a form of discrimination, as it is based on disregarding the gender identity of transgender people while respecting the identity of cisgender people. Discrimination against transgender people leads to violence, poverty, and social isolation, in addition to negatively interfering with access to social, economic, and health support systems ( Barnett et al., 2018 , p. 237).

16. ^ We share the position of França et al. (2019) , in understanding that one of the functions of the designation “gender ideology” is the negation of the ideological within the ideological.

17. ^ In the field of gender and American anti-Islam policies, we have the work of Judith Butler on the precariousness of life and the condition of ineluctable ( Butler, 2009/2016 ). In the field of racial issues, Achille Mbembe's work on the construction of the racial subject as the hostile other ( Mbembe, 2013/2018 ).

18. ^ On the other hand, other arguments against the access of trans women to women's restrooms are not justified by the appeal for safety, but rather by the basic belief that trans women are men and therefore could not use the women's bathroom ( Wilson, 2016 , p. 1400). A survey by Rudin et al. (2014) revealed that a significant number of participants understand that access to bathrooms for transgender people according to gender identity must be conditioned to the performance of sexual reassignment surgery, which implies the naturalization of public policies of invasive disciplinatory action of the corporeity of the population.

19. ^ The assumption that women's privacy in women's restrooms is guaranteed by the exclusion of men or people assigned with the male gender at birth is based on the assumption that only men or people assigned with the male gender at birth would be interested in invading that privacy ( Levi and Redman, 2010 , p. 163).

20. ^ Levi and Redman (2010 , p. 154) point out that the laws that prohibited the use of clothes of a certain gender if someone had been assigned the other gender in the 1950s until the 1980s in the USA used the argument that they would prevent “fraud” and, with that, the violent attacks in the bathrooms. It is interesting to consider the materiality of the language in the constitution of such arguments, since the designation “gender fraud” puts at stake a relationship between “truth × lie,” “cunning × righteousness,” but where would be the gross truth of the gender in a state of purity and susceptible to verification?

21. ^ The authors ( Barnett et al., 2018 ) were able to locate only one registered case of a transgender woman who committed a sexual offense in a women's bathroom (took pictures of the users of the bathroom without their permission).

22. ^ It is worth mentioning that in the context of the use of the women's bathroom, transgender women are often imagined as having “male anatomies” ( Schilt and Westbrook, 2015 , p. 29).

23. ^ Luisa Marilac is a youtuber, communicator, writer, and LGBTQ activist. In 2019 she published the biography “Eu, travesti: memórias de Luisa Marilac,” by Record publisher.

24. ^ https://www.youtube.com/watch?v=ARHLKPJPc7o&t=2

25. ^ https://www.youtube.com/watch?v=Bsrq8qv8Uig

Advocacia-Geral da União (2020). Embargos de Declaração . Available online at: https://www.conjur.com.br/dl/acao-agu.pdf (accessed December 15, 2020).

Google Scholar

Allouch, J. (2010). O Sexo do Mestre: o Erotismo Segundo Lacan . Rio de Janeiro: Companhia de Freud.

Arter, M. (2015). Houston's Proposed Bathroom Ordinance for Transgenders ‘Endangers Women and Girls,' Group Says . CNS News. Available online at: https://www.cnsnews.com/news/article/melanie-hunter/houstons-proposed-bathroom-ordinance-endangers-women-and-girls-group (accessed December 15, 2020).

Bagagli, B. P. (2019). Discursos Transfeministas e Feministas Radicais: Disputas Pela Significação da Mulher No Feminismo . Dissertation/Master's Thesis, Instituto de Estudos da Linguagem, Universidade Estadual de Campinas, Campinas, SP.

Barnett, B. S., Nesbit, A. E., and Sorrentino, R. M. (2018). The transgender bathroom debate at the intersection of politics, law, ethics, and science. J. Amer. Acad. Psychiatry Law. 46, 232–241. doi: 10.29158/JAAPL.003761-18

PubMed Abstract | CrossRef Full Text | Google Scholar

Beauchamp, T. (2019). Going Stealth: Transgender Politics and US Surveillance Practices . Durham, NC: Duke University Press.

Bender-Baird, K. (2016). Peeing under surveillance: bathrooms, gender policing, and hate violence. Gender Place Cult. 23, 983–988. doi: 10.1080/0966369X.2015.1073699

CrossRef Full Text | Google Scholar

Blumell, L. E., Huemmer, J., and Sternadori, M. (2019). Protecting the ladies: benevolent sexism, heteronormativity, and partisanship in online discussions of gender-neutral bathrooms. Mass Commun. Soc. 22, 365–388. doi: 10.1080/15205436.2018.1547833

Brasil (2014). Supremo Tribunal Federal. Repercussão Geral no Recurso Extraordinário n° 845.779 –SC . Relator Ministro Luís Roberto Barroso. Julgado em 31 de outubro de 2014.

Brasil (2018). Portaria PGR/MPU n.° 104, de 1° de março de 2018. Dispõe Sobre o uso do Nome Social Pelas Pessoas Transgênero Usuárias dos Serviços, Pelos Membros, Servidores, Estagiários e Trabalhadores Terceirizados, no Âmbito do Ministério Público da União . Available online at: http://bibliotecadigital.mpf.mp.br/bdmpf/bitstream/handle/11549/143358/PT_PGR_MPU_2018_7.pdf?sequence=3andisAllowed=y (accessed December 15, 2020).

Butler, J. (1990/2017). Problemas de Gênero, 14th Edn . Rio de Janeiro: Civilização Brasileira.

Butler, J. (1993/2013). “Corpos que pesam,” in O corpo educado , ed G. L. Louro (Belo Horizonte: Autêntica).

Butler, J. (2009/2016). Quadros de guerra: quando a vida é passl de luto? Rio de Janeiro: Civiliza Brasileira.

Campina Grande (2020). Lei Municipal n° 7.520. Proíbe a Interferência da “Ideologia de Gênero” nas Escolas Públicas e Privadas do Ensino Fundamental . Available online at: https://campinagrande.pb.gov.br/wp-content/uploads/2020/06/SEMAN%C3%81RIO-OFICIAL-N%C2%BA-2.678-01-A-05-DE-JUNHO-DE-2020.pdf (accessed December 15, 2020).

Carvalho Filho, J. S. (2015). Tratamento Social de Transexuais não Gera Desacordo Moral Razoável. Consultor Jurídico . Available online at: https://www.conjur.com.br/2015-dez-12/observatorio-constitucional-tratamento-social-transexuais-nao-gera-desacordo-moral-razoavel (accessed December 15, 2020).

Cestari, M. J. (2015). Vozes-Mulheres Negras ou Feministas e Antirracistas Graças às Yabás . Doctoral thesis, Universidade Estadual de Campinas, Instituto de Estudos da Linguagem, Campinas, SP.

Chaves, T. V. (2015). Da Marcha das Vadias às Vadias da Marcha: Discursos Sobre as Mulheres e o Espaço . Dissertation/Master's thesis, Universidade Estadual de Campinas, Instituto de Estudos da Linguagem, Campinas, SP.

CNCD (2015). Resolução N.° 12 de 16 de janeiro de 2015. Diário Oficial da União . Available online at: https://pesquisa.in.gov.br/imprensa/jsp/visualiza/index.jsp?data=12/03/2015andjornal=1andpagina=3andtotalArquivos=120 (accessed December 15, 2020).

Davis, H. F. (2018). Why the “transgender” bathroom controversy should make us rethink sex-segregated public bathrooms. Polit. Groups Ident. 6, 199–216. doi: 10.1080/21565503.2017.1338971

Department of Labor Occupational Safety Health Administration (2015). Best Practices: A Guide to Restroom Access for Transgender Workers . Available online at: https://www.osha.gov/Publications/OSHA3795.pdf (accessed December 15, 2020).

Doran, W. (2016). Equality NC Director: No Public Safety Risks in Cities with Transgender Anti-discrimination Rules . PolitiFact. Available online at: https://www.politifact.com/factchecks/2016/apr/01/chris-sgro/equality-nc-director-no-public-safety-risks-cities/ (accessed December 15, 2020).

Elkind, D. (2006). The constitutionalism implications of bathroom access based on gender identity: an examination of recent developments paving the way for the next frontier of equal protection. U. Pa. J. Const. Law. 9:895.

Fitzgerald, E. (2016). A Comprehensive Guide To The Debunked “Bathroom Predator” Myth. Media Matters for America. Available online at: https://www.mediamatters.org/sexual-harassment-sexual-assault/comprehensive-guide-debunked-bathroom-predator-myth (accessed December 15, 2020).

Folha de S. Paulo (2020). AGU Pede Que STF Esclareça se Criminalização da Homofobia Atinge Liberdade Religiosa . Available online at: https://www1.folha.uol.com.br/cotidiano/2020/10/agu-pede-que-stf-esclareca-se-criminalizacao-da-homofobia-atinge-liberdade-religiosa.shtml (accessed December 15, 2020).

França, G., Cestari, M. J., and Chaves, T. V. (2019). O sexo em discurso na contemporaneidade: o fantasma do gênero e o acontecimento Golden Shower. Rev. Crít. Cult. 14:223. doi: 10.19177/rcc.v14e22019223-240

G1 PB GLOBO (2020). Juíza Considera lei Inconstitucional e Permite Que Estudantes Usem Banheiros Conforme Identidade de Gênero, em Campina Grande . Available online at: https://g1.globo.com/pb/paraiba/noticia/2020/07/23/juiza-considera-lei-inconstitucional-e-permite-que-estudantes-usem-banheiros-conforme-identidade-de-genero-em-campina-grande.ghtml (accessed December 15, 2020).

Hasenbush, A., Flores, A. R., and Herman, J. L. (2019). Gender identity nondiscrimination laws in public accommodations: a review of evidence regarding safety and privacy in public restrooms, locker rooms, and changing rooms. Sex. Res. Soc. Policy 16, 70–83. doi: 10.1007/s13178-018-0335-z

Herman, J. L. (2013). Gendered restrooms and minority stress: the public regulation of gender and its impact on transgender people's lives. J. Publ. Manage. Soc. Policy 19, 65–80.

Huffpost Brasil (2019). Assembleia de SP Adverte Deputado do PSL Por Ofensa a Transexuais em Plenário . Available online at: https://www.huffpostbrasil.com/entry/douglas-garcia-transexual_br_5d670df5e4b01fcc690e8d1a (accessed December 15, 2020).

James, S. E., Herman, J. L., Rankin, S., Keisling, M., Mottet, L., and Anafi, M. (2016). The Report of the 2015 U.S. Transgender Survey. Washington, DC: National Center for Transgender Equality.

Jones, C., and Slater, J. (2020). The toilet debate: stalling trans possibilities and defending ‘women's protected spaces'. Sociol. Rev. 68, 834–851. doi: 10.1177/0038026120934697

Jones, Z. (2015). Bathroom Bills: Dehumanization and Control (Gender Analysis 06). Gender Analysis . Available online at: https://genderanalysis.net/2015/05/bathroom-bills-dehumanization-and-control-gender-analysis-06/ (accessed December 15, 2020).

Kaas, H. A. (2012). O Que é Cissexismo? Transfeminismo . Available online at: https://transfeminismo.com/o-que-e-cissexismo/ (accessed January 12, 2021).

Kessler, S. J., and McKenna, W. (2000). Gender construction in everyday life: transsexualism (abridged). Femin. Psychol. 10, 11–29. doi: 10.1177/0959353500010001003

Kogan, T. S. (2008). Transsexuals in public restrooms: law, cultural geography and etsitty v. Utah transit authority. Temp. Pol. Civ. Rts. L. Rev. 18, 673–697.

Kogan, T. S. (2017). Public restrooms and the distorting of transgender identity. NCL Rev. 95, 1205–1240.

Lauretis, T. (1989). Technologies of Gender: Essays on Theory, Film and Fiction . Bloomington: Indiana University Press.

Levi, J., and Redman, D. (2010). The cross-dressing case for bathroom equality. Seattle UL Rev. 34, 133–171.

Lopes, G. (2017). Anti-transgender Bathroom Hysteria, Explained. Vox . Available online at: https://www.vox.com/2016/5/5/11592908/transgender-bathroom-laws-rights (accessed December 15, 2020).

Machado, R. (n.d.). Preconceito e Falta de Acesso a Banheiros Aumentam o Risco de Infecção Urinária em Pessoas Trans. Drauzio . Available online at: https://drauziovarella.uol.com.br/urologia/preconceito-e-falta-de-acesso-a-banheiros-aumentam-o-risco-de-infeccao-urinaria-em-pessoas-trans/ (accessed December 15, 2020).

Maza, C. (2014). Debunking The Big Myth About Transgender-Inclusive Bathrooms . Media Matters for America. Available online at: https://www.mediamatters.org/fox-nation/debunking-big-myth-about-transgender-inclusive-bathrooms (accessed December 15, 2020).

Maza, C., and Brinker, L. (2014). 15 Experts Debunk Right-Wing Transgender Bathroom Myth. Media Matters for America. Available online at: https://www.mediamatters.org/sexual-harassment-sexual-assault/15-experts-debunk-right-wing-transgender-bathroom-myth (accessed December 15, 2020).

Mbembe, A. (2013/2018). Crítica da Razão Negra . São Paulo: n-1 edições.

Milner, J. (1978/2012). O Amor da Língua . Campinas: Editora da Unicamp.

Ministério Público Federal (2015). PGR: Transgênero não Pode ser Proibido de Usar Banheiro do Gênero com o Qual se Identifica . Available online at: https://mpf.jusbrasil.com.br/noticias/245528133/pgr-transgenero-nao-pode-ser-proibido-de-usar-banheiro-do-genero-com-o-qual-se-identifica (accessed December 15, 2020).

Movement Advancement Project (MAP), Equality Federation Institute Freedom for All Americans, National Center for Transgender Equality (NCTE). (2016). The Facts: Bathroom Safety, Nondiscrimination Laws, and Bathroom Ban Laws . Available online at: http://www.lgbtmap.org/file/bathroom-ban-laws.pdf (accessed December 15, 2020).

Murchison, G. R., Agénor, M., Reisner, S. L., and Watson, R. J. (2019). School restroom and locker room restrictions and sexual assault risk among transgender youth. Pediatrics 143:e20182902. doi: 10.1542/peds.2018-2902

National Task Force to End Sexual Domestic Violence against Women (NTF) (2018). National Consensus Statement of Anti-Sexual Assault and Domestic Violence Organizations in Support of Full and Equal Access for the Transgender Community . Available online at: http://www.4vawa.org/ntf-action-alerts-and-news/2018/4/12/national-consensus-statement-of-anti-sexual-assault-and-domestic-violence-organizations-in-support-of-full-and-equal-access-for-the-transgender-community (accessed December 15, 2020).

Notícias STF (2014). Tratamento Social Condizente Com Identidade Sexual é Tema Com Repercussão Geral . Available online at: http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=279813andcaixaBusca=N (accessed December 15, 2020).

Notícias STF (2015). Pedido de Vista Suspende Julgamento que Discute Tratamento Social dos Transexuais . Available online at: http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=304438 (accessed December 15, 2020).

Orlandi, E. P. (2004). Cidade dos Sentidos . Campinas, SP: Pontes.

Patel, N. (2017). Violent cistems: trans experiences of bathroom space. Agenda , 31, 51–63. doi: 10.1080/10130950.2017.1369717

Pêcheux, M. (1975/2009). Semântica e Discurso . Campinas: Editora da Unicamp.

Pêcheux, M. (1982/1990). Delimitações, Inversões, Deslocamentos. Caderno de Estudos Linguísticos . Campinas: Unicamp, 19.

Pêcheux, M. (1983/2012). O Discurso: Estrutura ou Acontecimento . Campinas: Pontes Editores.

Peter, J. W., Becker, J., and Davis, J. H. (2017). Trump Rescinds Rules on Bathrooms for Transgender Students. New York Times . Available online at: https://www.nytimes.com/2017/02/22/us/politics/devos-sessions-transgender-studentsrights (accessed December 15, 2020).

Pogofsky, M. (2017). Transgender persons have a fundamental right to use public bathrooms matching their gender identity. DePaul L. Rev. 67, 733–762.

Preciado, P. B. (2018). Lixo e Gênero. Mijar/Cagar. Revista Select, Mar . Available online at: https://www.select.art.br/lixo-e-genero-mijar-cagar-masculino-feminino/ (accessed December 15, 2020).

Rios, R. R., and Resadori, A. L. (2015). Direitos humanos, transexualidade e “direito dos banheiros”. Rev. Dir. Práxis 6, 196–227. doi: 10.12957/dep.2015.16715

Rudin, J., Ruane, S., Ross, L., Farro, A., and Billing, T. (2014). Hostile territory: employers' unwillingness to accommodate transgender employees. Equal. Divers. Inclus. 33, 721–734. doi: 10.1108/EDI-12-2013-0116

Santa Catarina (2012). Tribunal de Justiça. Apelação Cível n° 2012.019304-1. Relator Fernando Carioni . Julgado em 15 de maio de 2012.

Schilt, K., and Westbrook, L. (2015). Bathroom battlegrounds and penis panics. Contexts 14, 26–31. doi: 10.1177/153650421559694

Serano, J. (2016). Whipping the Girl: A Transsexual Woman About Sexism and the Scapegoat for Femininity . Berkeley, CA: Seal Press.

Turek, F. (2016). Six Reasons North Carolina Got It Right . Available online at: https://townhall.com/columnists/frankturek/2016/03/30/six-reasons-north-carolina-got-it-right-n2141010 (accessed December 15, 2020).

Viapiana, T. (2019). Lei Que Veta Uso de Banheiro Por Pessoas Trans é Inconstitucional, diz TJ-SP . Consultor Jurídico. Aailable online at: https://www.conjur.com.br/2019-out-29/lei-veta-uso-banheiro-pessoas-trans-inconstitucional (accessed December 15, 2020).

Weiss, K. G. (2009). ‘Boys will be boys' and other gendered accounts. Violence Against Women 15, 810–834. doi: 10.1177/1077801209333611

Wilson, R. F. (2016). The nonsense about bathrooms: How purported concerns over safety block LGBT nondiscrimination laws and obscure real religious liberty concerns. Lewis Clark Law Rev. 20, 1373−1460. doi: 10.2139/ssrn.2912552

Zoppi-Fontana, M. G. (1999/2003). Lugares de enunciação e discurso. Rev. Progr. PósGrad. Letr. Linguíst . 23, 15–24. doi: 10.28998/0103-6858.1999n23p15-24

Keywords: transgender rights, bathroom laws, discourse analysis, sexual violence, privacy, discrimination, security, public restrooms

Citation: Bagagli BP, Chaves TV and Zoppi Fontana MG (2021) Trans Women and Public Restrooms: The Legal Discourse and Its Violence. Front. Sociol. 6:652777. doi: 10.3389/fsoc.2021.652777

Received: 13 January 2021; Accepted: 22 February 2021; Published: 31 March 2021.

Reviewed by:

Copyright © 2021 Bagagli, Chaves and Zoppi Fontana. This is an open-access article distributed under the terms of the Creative Commons Attribution License (CC BY) . The use, distribution or reproduction in other forums is permitted, provided the original author(s) and the copyright owner(s) are credited and that the original publication in this journal is cited, in accordance with accepted academic practice. No use, distribution or reproduction is permitted which does not comply with these terms.

*Correspondence: Mónica G. Zoppi Fontana, monzoppi@unicamp.br

† These authors have contributed equally to this work and share first authorship

Disclaimer: All claims expressed in this article are solely those of the authors and do not necessarily represent those of their affiliated organizations, or those of the publisher, the editors and the reviewers. Any product that may be evaluated in this article or claim that may be made by its manufacturer is not guaranteed or endorsed by the publisher.

Why gender-neutral bathrooms benefit all young people

• Copy Link URL Copied!

This is the March 7, 2022, edition of the 8 to 3 newsletter about school, kids and parenting. Like what you’re reading? Sign up to get it in your inbox every Monday.

Good morning, 8-to-3 readers. I’ve spent the last two weeks reporting on a Long Beach high school’s plan to build a gender-neutral locker room. I assumed this would be a straightforward story about how school facilities’ design is moving in the direction of inclusivity. Instead, I ended up writing about the project being paused after a small group of community members spoke out against it, and what that has to do with an unprecedented wave of legislation that seeks to restrict the rights of transgender youth.

High school students in Long Beach began advocating for multi-stall, all-gender restrooms in 2018. These teens took on the emotionally exhausting task of recounting their experiences of being bullied in bathrooms to school leaders, educators and parents. Many times, their only option was to use the bathroom in the nurse’s office, which was stigmatizing and unintentionally outed students who had not yet shared their gender identities with their classmates. Some kids opted not to go to the bathroom at all, making it hard to concentrate in class — and in some cases leading to urinary tract infections.

The district listened. By January 2020, Long Beach Unified had quietly opened multi-stall bathrooms at three high schools. There was little to no opposition at the time and no press. The district now requires all new school construction to include gender-neutral facilities.

Enter the new aquatics center at Wilson High School, the first facility to be built since this shift. The district conducted focus groups on locker room design with 60 students. Participants, regardless of gender identity, consistently described feeling uncomfortable in the communal showers and changing areas. Many brought up body image and bullying.

Wilson High’s locker room design reflects this feedback. Each stall includes a shower, changing area, bench and storage nook. The partitions between each stall would extend nearly to the ceiling and floor, and waist-high lockers would allow for coaches to easily supervise the space.

Community members began speaking out against the project at Board of Education meetings in early December, just after the right-wing website Breitbart published a piece decrying the plan. Fewer than 20 people publicly voiced opposition to the locker rooms (to learn more about their arguments, I encourage you to read the story ). That was still enough for the district to pause the plan while it gathered more input.

I spoke with Christopher Covington, an organizer at Genders & Sexualities Alliance Network who has worked closely with Long Beach students around this issue. It’s likely that many people who oppose gender-neutral bathrooms and locker rooms don’t know a trans person personally, they said.

“They don’t understand the challenges young trans people face on school campuses, and how creating a facility like this could potentially support them,” Covington told me.

Consider, for example, what it’s like to be a transgender boy in high school. Maybe he’s yet to transition or come out. One day, he chooses to use the restroom that aligns with his gender identity because using the girls’ restroom is emotionally distressing. It’s in this kind of situation where many gender-diverse students are harassed, questioned and — in the worst cases — physically harmed, said Carla Peña, manager of professional development at Gender Spectrum, an organization that works to create gender-inclusive environments for kids and teens.

In 2013, California became the first in the U.S. to enshrine into law the right of transgender students to choose bathroom and locker rooms that match their gender identity. Three years later, the state required all single-occupancy public toilets to be gender-neutral by spring 2017. Although advocates say that this was a step in the right direction, many schools complied with the law by letting students use the bathroom in the nurse’s office, which inevitably singled them out.

Peña estimates that maybe a quarter of high schools nationwide have some sort of gender-neutral bathroom option — and that’s being generous, she said. Most of those are of the nurse’s bathroom variety. In 2019, a national survey by the education organization GLSEN found that 45% of LGBTQ+ students avoided using gender-segregated school bathrooms and 44% avoided locker rooms because they felt unsafe or uncomfortable.

Multi-stall, inclusive facilities remove these barriers, Peña said: “If I’m not worried about getting my basic needs met, or whether or not using the bathroom will out me, I have less anxiety and more energy to be present and learn.”

According to advocates, inclusive facilities benefit all pupils, regardless of gender identity. “We know that the availability of spaces at schools make students overall feel safer,” said Joel Jemino, youth services manager at the Long Beach LGBTQ Center. “It’s a clear message from the school that this is a place where they are included, that — no matter what — they have a right to safety.”

Such bathrooms and locker rooms also serve students with physical disabilities who have caretakers of a different gender. And they teach young people the importance of respecting people in all of their identities, how to share spaces with others, and privacy and boundaries.

Teens seem to get this. School leaders in Long Beach told me that students overwhelmingly support the locker room plan. “They’re like, ‘Why wouldn’t we be doing this?’ ” said Tiffany Brown, the district’s deputy superintendent. The opposition is almost solely led by adults.

The most commonly voiced concern these days against communal, all-gender bathrooms is that students — particularly girls — will be harassed or assaulted by the opposite sex. This belief has roots in the historical argument that trans people are the ones to be feared in bathrooms, advocates told me. But that’s a perspective that wouldn’t be well-received in a politically progressive and LGBTQ-friendly city like Long Beach.

At the end of the day, the safety issue is a moot point, said Rodrigo Heng-Lehtinen, executive director of National Center for Transgender Equality. If students are being harassed in bathrooms, that’s a school-climate issue, not a gender issue.

“Harassment is still illegal in a gender-neutral facility,” he said. “Protections and norms around acceptable behavior still apply.”

An eventful week for California higher education

Cal State officials have launched an independent investigation into how Fresno State University administrators handled sexual harassment complaints against a former campus vice president, according to Times reporters Colleen Shalby and Robert J. Lopez. Chancellor Joseph I. Castro stepped down last month following reports that, as president of Fresno State in 2020, he quietly authorized a $260,000 payout and retirement package for former Vice President of Student Affairs Frank Lamas, who was the subject of complaints of bullying, intimidation and sexual harassment that began in 2014 and continued through 2019.

The California Supreme Court on Thursday decided not to lift an enrollment cap on UC Berkeley , a move that forces one of the nation’s most popular campuses to scramble for ways to avoid what it initially feared could be major cuts to its incoming fall class. The court rejected the University of California’s appeal to stay a lower court ruling issued in August that froze enrollment at Berkeley until the campus more thoroughly examined the impact of its growth on housing, homelessness and noise.

This happened just weeks before it was set to release admission decisions. A university spokesman told my colleague Teresa Watanabe that the campus would meet the cap by offering at least 1,500 incoming first-year and transfer students online enrollment for fall, or deferred admission next January for the spring semester.

The Los Angeles Community College District’s Board of Trustees has backed down from appealing to the U.S. Supreme Court over a lawsuit filed by two blind students who claimed the district failed to properly help them with accommodations to which they are legally entitled. The board voted unanimously not to appeal the 2017 lawsuit and to continue instead with mediation. The case boiled down to a question over whether unintentional discrimination — a lack of accommodation, for example, that inadvertently hinders a person — is a violation of federal law.

Enjoying this newsletter?

Consider forwarding it to a friend, and support our journalism by becoming a subscriber . Did you get this newsletter forwarded to you? Sign up here to get it in your inbox every week.

What else we’re reading this week

Curriculum transparency bills are proliferating across the U.S. The legislation would require schools to post all instructional materials online, with the goal of enabling parents who distrust their children’s schools to carefully examine teaching materials — including those on race and racial equity. Washington Post

Frustrated by Oakland Unified School District closures, student leaders are turning their gaze to school board elections . In the Town, 16- and 17-year-olds are now able to vote in these elections that inevitably have so much influence on the quality of their education. Oaklandside

International students from Ukraine living in the U.S. are struggling to balance their studies with painful images from home, including possible war crimes committed by Russian forces against civilians. The 74

Why does it cost a fortune to get the best test for disabilities like ADHD, autism and dyslexia? Such financial barriers prevent many Americans from accessing vital special education services. USA Today

Sign up for Essential California

The most important California stories and recommendations in your inbox every morning.

You may occasionally receive promotional content from the Los Angeles Times.

Laura Newberry is a former reporter with the lifestyle section at the Los Angeles Times. She wrote Group Therapy, a weekly newsletter that answers readers’ questions about mental health. She previously worked on The Times’ education team and was a staff reporter at both the Reading Eagle in Eastern Pennsylvania and MassLive in Western Massachusetts. She graduated from UC Berkeley’s Graduate School of Journalism and also has a master’s degree in social work from the University of Central Florida.

More From the Los Angeles Times

Sean ‘Diddy’ Combs arrested after grand jury indictment

California enacts law reviving a Jewish family’s claim to Nazi-looted art, bucking 9th Circuit

Sept. 16, 2024

Two people found dead in Long Beach, SWAT officers in standoff with possible suspect

Two dead after shots fired between LAPD officers and a gunman in North Hollywood

• Hispanoamérica
• Work at ArchDaily
• Terms of Use
• Privacy Policy
• Cookie Policy

Designing around Debate: The Gender-Neutral Bathroom

• Written by Ankitha Gattupalli
• Published on June 28, 2022

“Creating an equitable city implies that every citizen has their needs met ”, states architect Wanda Dalla Costa at a time when metropolises were noticing change. Architects and the public have started to acknowledge the gender-driven design of public spaces. Across the world, urban areas have been a site of discrimination and danger to the LGBTQ+ community. Gender is demonstrated in public zones that promote visibility and interaction between people. An arduous challenge lays upon architects and planners to design fair environments and equitable spaces.

One such partial public space, that seem more private, are shared toilets. When it comes to gender inclusivity, toilets have been met with resistance and heated debate. For transgender people, the decision between using the men’s or women’s bathroom can be tough, even harmful. Nearly 70% of transgender people, in particular trans women, have undergone verbal harassment in gender-segregated bathrooms while almost 10% have reported physical assault. Activists have proposed the idea of “gender-neutral” toilets to prevent such atrocities, and prototypes have been mushrooming across countries like the United States, Canada, China, India, Nepal, Thailand, Brazil and Japan.

The modern-day gender-neutral bathroom is simply a public toilet that is accessible and designed for the use of any gender group. It can take the form of a single-user toilet, similar to those in private residences, or as a multi-user communal bathroom. Single-user toilets are straightforward in design - a washbasin and water closet enclosed in a private room. This typology maintains the privacy of the user and has worked well in shared environments. Multi-user public toilets, on the other hand, have required modifications in their designs to better cater to the public’s concerns. 

Hesitancy is a significant hurdle behind the widespread acceptance of gender-neutral toilets. Historically, gender-segregated bathrooms have been the norm . Changing opinions on gender norms has fueled a shift to unisex facilities, consequently uncovering some people’s discomfort with the idea. Apprehensions around the concept stem from a perceived threat to safety and privacy, especially when it comes to unaccompanied children .

Embarrassment around other genders also holds people skeptical about a communal toilet experience. Women may feel uncomfortable tidying up in front of the mirror or attending to their menstrual needs in unisex bathrooms. They may also find public toilets distressing to use for hygienic reasons . Individuals suffering from a “shy bladder” could feel self-conscious around other gender groups in such environments.

The gender-neutral bathroom appears challenging to deploy in some countries, owing to the different cultural ideas around modesty, gender, and gender segregation . Many religions and cultures prohibit sharing intimate spaces like toilets with unrelated people of the opposite sex. Societal notions around menstruation may also make it difficult for the international spread of the multi-stall gender-neutral bathroom.

When it comes to user safety, the other side of the debate makes a good case. Gender-neutral toilets not only provide secure experiences for trans and non-binary users but also for children and the elderly . Carers can accompany their dependants to the bathroom and assist them with ease. Unisex bathrooms would also support equal parenting by making changing and feeding rooms accessible to mothers and fathers.

A long line usually precedes the door to the ladies' room. Women usually take longer in bathrooms due to childcare, menstruation, poor toilet design, and fewer cubicles. The average gender-segregated bathroom can have 20% to 30% more toilets for men than women, leaving the latter waiting in queues. Gender-neutral bathrooms level the playing field by making more toilet stalls accessible to women at a given time. These stalls need to be equipped with sanitary bins and storage facilities to make each stall truly accessible to women.

Unisex toilets are more cost-effective by cutting down the area that would normally be taken up by a pair of segregated bathrooms. Fewer fixtures and fittings also reduce the amount of time and money spent cleaning and maintaining them. Electricity and water bills are halved.

The debate highlights the fundamental problem around this social equity issue - toilet design. So far, there haven’t been standardized layouts or sets of rules on what exactly makes a bathroom gender-neutral. Not much thought has been given to the design of spaces based on the different needs of gender groups. These problems and concerns have shaped design briefs that aim to create ethical and comfortable toilet experiences for all. 

Among recent examples, the architects at WorkAC collaborated with a queer student organization to design a gender-inclusive toilet at the Rhode Island School of Design Student Center in the United States. Equipped with a gender agnostic design approach, the team proposed a set of six enclosed water closets around a communal wash basin. Each toilet room contains a mirror, shelf, and small vanity light, allowing for moments of privacy.

Stalled! has gone a step further and designed prototypes for safe, sustainable, and inclusive bathrooms for people regardless of age, gender, race, religion, and disability. The cross-disciplinary team delivers a set of guidelines for inclusive toilet design online . The prototypes tackle problems faced by breastfeeding mothers, people needing to administer medication or perform religious rites, and people with physical or mental disabilities.

Most unisex washrooms have an open-plan design to create a busier and more visible communal space, ensuring user safety . They may have clear glass entryways or no door at all. Cubicle partitions and doors can be made full-length, and modesty features around urinals can be designed to enhance privacy. Workplaces have been using a combination of gender-neutral and gender-segregated toilets to meet everyone's needs.

When designing inclusive and safer spaces, it is essential to integrate the end-user during the planning process. Diverse groups of people provide a variety of viewpoints for designers to work with, although resulting in dispute. Architects can contribute to social issues by lending an unbiased ear to the demands of the people to design spaces that seek to benefit all its users. There is no good design without debate.

Image gallery

• Sustainability

想阅读文章的中文版本吗?

如何设计性别中立卫生间？

You've started following your first account, did you know.

You'll now receive updates based on what you follow! Personalize your stream and start following your favorite authors, offices and users.

Find anything you save across the site in your account

The Transgender Bathroom Debate and the Looming Title IX Crisis

This month, regional battles over the right of transgender people to access public bathrooms were elevated to national legal theatre. First, the Justice Department told North Carolina that its recent law, requiring education boards and public agencies to limit the use of sex-segregated bathrooms to people of the corresponding biological sex, violated federal civil-rights laws. Governor Pat McCrory responded with a lawsuit, asking a court to declare that the state’s law doesn’t violate those federal laws. Meanwhile, in a suit filed on the same day, the Justice Department asked a court to say that it does.

To top it off, on May 13th the Education Department’s Office for Civil Rights (O.C.R.) and the Justice Department’s Civil Rights Division issued a Dear Colleague letter announcing to the nation’s schools that, under Title IX—the 1972 law banning sex discrimination by schools that receive federal funding—transgender students must be allowed to use rest rooms that are “consistent with their gender identity.” The threat was clear: schools that failed to comply could lose federal funding. Protests of federal overreach immediately ensued, including from parents citing safety and privacy as reasons for children and teen-agers to share bathrooms and locker rooms only with students of the same biological sex.

In chastising North Carolina, the Justice Department explained that if non-transgender people may use bathrooms consistent with their gender identity, then denying transgender people access consistent with their gender identity constitutes discrimination on the basis of sex. Similarly, the Dear Colleague letter states that the federal government “treats a student’s gender identity as a student’s sex for the purposes of Title IX.” These interpretations of federal anti-discrimination law are new and surprising. It is not at all obvious that the “sex” in sex-discrimination law means not sex but gender, let alone “an internal sense of gender,” as the Letter says. But it is also reasonable to interpret sex-discrimination law to prohibit discrimination against transgender people. Given that single-sex bathrooms have never been seen as constituting sex discrimination, the tricky question is whether limiting them based on biological sex, rather than gender, does indeed discriminate on the basis of sex.

Quite apart from a possible legal right, it is reasonable to think that the appropriate bathrooms for transgender people to use are ones fitting their gender identities. But the parents’ rhetoric of federal overreach on Title IX is not off base. It is of course unexceptional for the federal government to enforce federal law. But, unlike the Education Department’s many regulations, the Dear Colleague letter is not law, because it wasn’t enacted through legal procedures, involving public input, that federal agencies must follow when making law. The Education Department’s rule that schools must provide prompt and equitable grievance procedures to hear complaints of Title IX sex discrimination results from that required process and is legally binding. But the agency chose not to have such a process for its missive on transgender students.

This is a familiar but controversial O.C.R. strategy. Its last Dear Colleague letter about Title IX, in 2011, said that sexual violence is a form of sexual harassment and is therefore sex discrimination. It detailed how colleges and universities must discipline perpetrators and prevent such incidents. It too came with a threat to cut off federal funds, and O.C.R. proceeded to investigate hundreds of schools for noncompliance. (O.C.R. found Harvard Law School, where I teach, in violation of certain terms of the Dear Colleague letter. I have been critical of the federal pressure on schools to adopt policies and procedures that deny fairness to accused students in the name of Title IX compliance.) Several lawsuits claiming that O.C.R. unlawfully promulgated and enforced the contents of its Dear Colleague letter on sexual violence are currently pending in the federal courts.

Whether or not the federal government acted unlawfully, it has now set in motion a potential Title IX collision course between its directives on sexual violence and on bathrooms. Schools attempting to comply with the federal bathroom policy have at least two possible ways of doing so: allow students to use sex-segregated bathrooms and locker rooms based on their gender identity, or move away from sex segregation of such facilities. The latter, gender-inclusive arrangement, which was in place in my college dormitory more than twenty years ago, is not uncommon on campuses, and a social movement to desegregate at least some portion of bathrooms is growing. Some colleges have made every bathroom on campus open to any gender, and this solution could well become a practical choice at K-12 public schools.

But there is also a growing sense that some females will not feel safe sharing bathrooms, shower rooms, or locker rooms with males. And if a female student claimed that a bathroom or locker room that her school had her share with male students caused her to feel sexually vulnerable and created a hostile environment, the complaint would be difficult to dismiss, particularly since the federal government has interpreted Title IX broadly and said that schools must try to prevent a hostile environment. This is not wholly hypothetical. Brandeis University found a male student responsible for sexual misconduct for looking at his boyfriend’s genitals while both were using a communal school shower. The disciplined student then sued the school for denying him basic fairness in its disciplinary process, and a federal court recently refused to dismiss the suit.

Continuing to have segregated bathrooms could also put schools in a bind on Title IX compliance. According to the federal government, a transgender girl who is told to use the boys’ locker room, or even a separate and private stall, instead of the girls’ facility, has a claim that the school is violating Title IX. A non-transgender girl who’s told she must share a locker room with boys may also have a claim that the school is violating Title IX. But would she not have a similar claim about having to share with students who identify as girls but are biologically male? Well, not if her discomfort and “emotional strain” should be disregarded. But this week, in a letter, dozens of members of Congress asked the Attorney General and the Secretary of Education to explain why they should be disregarded. The federal government is putting schools in a position where they may be sued whichever route they choose. (Catherine Lhamon, the assistant secretary for Civil Rights at the Department of Education, declined to comment on this issue.)

The debate around which bathrooms transgender people should use has given rise to deeper questioning of why we even have a norm of gender segregation for bathrooms in the first place. But a push to make those spaces open to all genders comes up uneasily against feelings of female sexual vulnerability and their effect on an equal education or workplace. To make things more complicated, the risk of sexual assault and harassment of transgender females in male bathrooms is a salient reason for providing access to bathrooms according to gender identity, while many worry about transgender males being sexually bullied in male bathrooms.

The common denominator in all of these scenarios is fear of attacks and harassment carried out by males—not fear of transgender people. The discomfort that some people, some sexual-assault survivors, in particular, feel at the idea of being in rest rooms with people with male sex organs, whatever their gender, is not easy to brush aside as bigotry. But having, in the past several years, directed the public toward heightened anxiety about campus sexual assault, the federal government now says that to carry that discomfort into bathrooms is illegitimate because it is discrimination. The sense that the Education Department has not looked down the road to consider the conflict is only confirmed by its penchant for announcing bold and controversial rules in letters, rather than through lawful processes.

Transgender Students and Bathrooms: What Should Schools Do?

• Share article

Update: A federal judge in Texas granted a preliminary injunction Aug. 21, halting the application of the Obama administration’s guidance on transgender students nationwide while he considers a lawsuit brought by Texas and 12 other states about the rules. The U.S. Supreme Court is also considering hearing a case centered on restroom access for a transgender Virginia boy.

The Obama administration’s guidance to schools on the rights of transgender students has provoked protests from conservative governors and drawn two forceful multi-state legal challenges from a total of 23 states that are seeking to block the directive . The U.S. departments of Justice and Education assert that, under Title IX, which prohibits sex discrimination in educational settings, schools must allow transgender students to access restrooms, locker rooms, and sex-segregated classes that align with their gender identity, even if it differs from their sex at birth. Their opponents argue that the federal agencies overstepped their authority, improperly creating a new rule rather than interpreting an existing one.

Answers to some common questions on the guidance:

How many transgender students are there?

No data sources track how many students’ gender identity differs from their sex at birth.

At the urging of student-advocacy groups, federal agencies have worked in recent years to improve data collection on school climate for gay and lesbian students , but information on transgender students still lags.

In fact, little official data exists on the size of the transgender population as a whole. The Williams Institute at the University of California, Los Angeles, has estimated that about 0.3 percent of U.S. adults are transgender.

Transgender-advocacy groups have speculated that greater awareness of gender issues may lead to more children “coming out” or expressing interest in transitioning at earlier ages. Regardless of the size of the transgender-student population, all schools are required to adhere to the administration’s Title IX guidance.

How should schools identify when a student needs these accommodations?

The guidance says schools must ensure that a student’s treatment aligns with his or her gender identity “when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records.”

The Justice and Education departments did not provide further advice for how this process should work. In most schools that had transgender-student policies before the guidance was issued, accommodations generally started after notification from parents. But many schools allow exceptions for students who decide to transition on their own, without support from their parents or guardians, because they view it as a civil right.

Schools can only require an assertion of gender transition. Requiring a diagnosis or treatment before a student is considered transgender may be unfair to lower-income students without access to such options, advocacy groups say.

Are restrooms really that big a deal?

Transgender students say they need a range of supports to feel safe and supported at school, including being called by proper pronouns and ensuring privacy about their transition unless they choose to share that information with their peers.

Using the appropriate restrooms and locker rooms is a key part of successfully transitioning between genders, the American Psychological Association has said. And facilities are a central issue, students say, because they can amplify existing issues like bullying. Transgender girls, for example, often report feeling unsafe using boys’ restrooms. And many transgender students say that when a school restricts facilities access, it can feel like it is condoning bullying.

Before North Carolina passed restrictions on school restroom and locker room access in March, Sky Thomson, a 15-year-old transgender boy, said in a legislative hearing that forbidding him from using the boys’ restroom “gives bullies all the more reason to pick on us.”

Thomson’s mother said some transgender students she’s met refuse to drink water at school to avoid using a restroom that doesn’t align with their gender identity.

Why can’t schools just send transgender students to single-stall or faculty restrooms?

Some schools that have rejected the federal interpretation of Title IX have argued that providing transgender students access to staff or single-stall facilities is an adequate solution.

But federal agencies argue that treating a transgender boy differently from a boy who is biologically male in any way is a form of discrimination.

And students who’ve fought for access in state courts say it is stigmatizing to use separate facilities from their peers.

What if students are uncomfortable sharing restrooms with transgender students?

Some schools that have implemented transgender policies have made a single-stall or staff restroom available for students who are uncomfortable sharing facilities with their transgender peers.

What about this bill my state is considering? What if the governor is telling schools to defy the Obama administration?

Federal civil rights laws supersede state-level statutes and regulations. If courts uphold the federal assertion that Title IX requires schools to respect a student’s gender identity, it’s unlikely a state law could counteract that.

Is this guidance the final word on Title IX and transgender students?

No. The future of the guidance is in the hands of the federal courts, including one considering a challenge by 11 states, which will soon decide whether to uphold or overturn the federal interpretation of Title IX.

A three-judge panel of the 4th Circuit Court of Appeals, which has jurisdiction over five states, has previously ruled that Title IX could apply to either biological sex or gender identity and that a lower court should have deferred to the federal interpretation, gender identity, when it ruled on a Virginia student’s restroom-access case. But the school district at the heart of that case has appealed the ruling to the full court. Soon, a federal court in Illinois will hear the case of suburban Chicago parents who argue that their children’s school violated their privacy rights when it allowed a transgender girl access to the girls’ locker room in compliance with a federal order.

If two appeals courts issue different rulings on the issue, it could be bound for the U.S. Supreme Court, school law experts have said. And, as a dissenting judge in the 4th Circuit case noted, a future presidential administration may interpret Title IX differently.

A version of this article appeared in the June 01, 2016 edition of Education Week as Transgender Debate: What’s Next?

Sign Up for EdWeek Update

Edweek top school jobs.

Sign Up & Sign In

Universal Design All-Gender Restrooms

As of November 2023, the Map Movement Project reported seven states that banned transgender people from using restrooms and facilities consistent with their gender identity in K-12 schools. One additional state, North Dakota, extended the ban to some government-owned buildings, and one more state, Florida, extended the ban to colleges and government buildings. Such laws have documented negative impact on the mental health of transgender people (Horne, S. G., McGinley, M., Yel, N., & Maroney, M. R., 2022).

All-gender public restrooms can be used by anyone. In the U.S., all-gender restroom ordinances require a city, state, or municipality to designate single-stall public restrooms as all-gender. These public restrooms are commonly referred as “gender-inclusive,” “gender-neutral,” “mixed-sex,” or “unisex.” In addition to benefiting the transgender community, these laws can also benefit others, including people with disabilities, older adults, and parents of small children (American Psychological Association, 2019).

Gender-segregated restrooms can be unsafe and inaccessible to transgender people, since transgender people risk physical and verbal victimization in whichever gender-segregated restroom they enter (National Center for Transgender Equality, 2015). Those who oppose all-gender restrooms often cite concern that transgender people will attack or sexually harass cisgender people—particularly that transgender girls and women will victimize cisgender girls and women (Sanders & Striker, 2016). Since there is a much greater incidence of cisgender people attacking transgender people in bathrooms, the supposed controversy regarding all-gender restrooms has been labeled by activists and academics as a moral panic (Sanders & Striker, 2016).

Suggested discussion points

• Many transgender, nonbinary, and gender non-conforming people report being “gender-policed” (Detloff, 2006; Payne & Smith, 2016) when using public bathrooms with gender designated signage. Gender-inclusive bathrooms make it safer for them to use public restrooms (Chaney & Sanchez, 2017).
• According to the 2015 U.S. Transgender Survey, which had 27,715 respondents, transgender individuals reported incidents of verbal harassment (12% of respondents), physical assault (1%), or sexual assault (1%) when accessing a restroom, while 9% of survey respondents reported that they were denied access to a restroom in the past year (National Center for Transgender Equality, 2015).
• Gender-inclusive restrooms are also helpful for people whose family member—such as a child, person with a disability, or older adult—requires assistance from parents or caregivers of a different sex or gender (American Psychological Association, 2019).
• Single-use restrooms are crucial to people with paruresis (“shy bladder syndrome”) or parcopresis (“shy bowel syndrome”) who cannot comfortably use multi-stall restrooms (Knowles, & Skues, 2016). Gender-neutral signage also reduces long wait lines commonly associated with female-designated restrooms.
• For these reasons and many others, we are asking you to oppose (bathroom use bans) / support or co-sponsor (bills to establish universal design bathrooms). Please contact us if you have any questions, and we look forward to working with your office on this.

Are you a psychologist or a representative of a state, provincial, or territorial psychology association who has written a letter to your state legislative representative or representatives, provided testimony at a committee hearing, or participated in direct advocacy individually or with organized community advocacy efforts? If so, would you be willing to share either copies of letters or testimony, or videos of testimony, for consideration to be added here as examples to inform and inspire others to take similar action? If so, please send via email .

American Psychological Association. (2019). Resolution on Support of Universal Design and Accessibility in Education, Training and Practice.   https://www.apa.org/about/policy/universal-design-accessibility-education

Chaney, K. E. & Sanchez, D. T. (2017). Gender- Inclusive Bathrooms Signal Fairness Across Identity Dimensions.  Social Psychological and Personality Science , 9 (2), 245- 253.  https://doi.org/10.1177/1948550617737601

Detloff, M. (2006). Gender Please, Without the Gender Police,  Journal of Lesbian Studies , 10 (1-2), 87-105. https://doi: 10.1300/J155v10n01_05

Horne, S. G., McGinley, M., Yel, N., & Maroney, M. R. (2022). The stench of bathroom bills and anti-transgender legislation: Anxiety and depression among transgender, nonbinary, and cisgender LGBQ people during a state referendum. Journal of Counseling Psychology, 69 (1), 1–13. https://doi.org/10.1037/cou0000558 )

Knowles, S. R. & Skues, J. (2016). Development and validation of the Shy Bladder and Bowel Scale (SBBS).  Cognitive Behaviour Therapy , 45 (4), 324-338. https://doi.org/10.1080/16506073.2016.1178800

Payne, E. & Smith M. J. (2016). Gender Policing. In: Rodriguez N., Martino W., Ingrey J., Brockenbrough E. (eds) Critical Concepts in Queer Studies and Education.  Queer Studies and Education . Palgrave Macmillan, New York. https:// doi.org/10.1057/978-1-137-55425-3_14

National Center for Transgender Equality. (2015). 2015 U.S. Transgender Survey Executive Summary .  https://transequality.org/sites/default/files/docs/usts/USTS-Executive-Summary-Dec17.pdf

Sanders, J. & Striker, S. (2016). Stalled: Gender-neutral public bathrooms. The South Atlantic Quarterly, 115 (4). https://doi.org/10.1215/00382876-3656191

APA Resources

Transgender, Gender Identity and Gender Expression Non-discrimination (PDF, 70KB ) Adopted by the APA Council of Representatives on August 13-14, 2008.

Trans Resource Guide: A Guide for Supporting Trans and Gender Diverse Students (PDF, 309KB) This guide provides a safe learning environment for trans and gender diverse students who continue to be marginalized in many aspects of their lives.

More LGBTQ issue by issue resources