DISCRIMINATORY BATHROOM BILLS ignore the extreme challenges many transgender and gender non-conforming individuals face in gaining access to public facilities. Evidence suggests that daily anxieties over bathroom use remains a primary concern for transgender and gender non-conforming populations and leads to increased rates of health problems such as urinary tract infections, as well as mental health concerns tied to sustained discrimination and harassment. Greater attention to actual trans experiences highlights the need for greater education and widespread understanding of the indiginities and varying challenges gender non-conforming individuals face in accessing public facilities.
Trans persons face a variety of forms of discrimination in the lack of adequate bathroom facilities, including both physical and verbal harassment. In response, many avoid using the restroom sometimes for prolonged periods of time. As result of "holding it” or avoiding relieving oneself, many suffer from weakened bladders and kidneys. Additionally, dehydration is shown to lead to many other long term medical issues. These conditions are just some of the health challenges, which extend to mental health issues, that point to highly unequal health outcomes faced by gender non-conforming populations.
For many transgender individuals, bathroom avoidance allows reprieve from persistent harassment in and around lavatories. In one study of several dozen transgender persons in Washington DC, 70 percent of respondents experienced some form of restriction or harassment in accessing bathrooms. The highest occurrence was verbal harassment. Many respondents recounted their strategies for avoiding harassment, such as attempting to “pass,” in the case of a transwoman, as highly feminine. “It works under 50 percent of the time,” she reported, “I am often still read as a man.”3 Additionally, 9 percent of respondents reported experiencing physical assault during attempts to use restroom facilities. Studies show that race, ethnicity and (to a lesser extent) class can all contribute to the likelihood that transgender persons face discrimination and harassment.
A 2015 legal challenge succeeded in demonstrating that insufficient restroom access constituted a violation of equal access, recognizing the indignity such a lack of access provides. The Equal Employment Opportunity Commission, citing previous federal court precedents, ruled that barring the employee from using the bathroom consistent with her gender identity was a violation of Title VII employment law. The case, Lusardi v. McHugh, was filed by a civilian employee against the U.S. Army after she was barred from using the women’s room until she received gender reassignment surgery. The suit detailed the persistent challenges she faced particularly after an attempt at accommodation (through a single single-user restroom) failed, forcing her to use multi-user women’s restrooms but face disciplinary action for doing so. The EEOC’s ruling was powerful in recognizing that bathroom access was central to employment and that the employer could not “condition” the use of facilities contingent upon medical surgery status nor restrict the type of facility an individual used. Invoking the aim of Title VII that one group (in this case, cisgender women) could not aim to bar an individual on the basis of their own interest, the EEOC condemned solutions that “isolated and segregated [the defendant] from other persons of her gender. It perpetuated the sense that she was not worthy of equal treatment and respect.” The case highlights the pitfalls of arguments for single-user stalls as a practical remedy, as it places the onus on the transgender individual to conform to this accommodation even when not practical (such as the case that the single-user stall is closed for cleaning or is in disrepair).4 The finding acknowledges that restroom access is central to the inclusion of transgender and gender non-conforming individuals in society.
The Trump administration’s reversal of Obama-era commitments to transgender equality illustrates the need for proactive solutions to address the intrenchant forms of discrimination trans individuals face in meeting a basic need. Despite recent gains in advocacy in some states, and more broadly in popular culture, stereotyped narratives of the dangers of gender identity based bathrooms still dominate. Amid arguments, for instance, for the North Carolina bathroom bill, HB2, conservative lawmakers, in the words of one legal scholar, “embraced the cultural history of sex segregation” that posed women as inherently vulnerable and in need of protection.5 As in other contexts, defenders of sex segregation, in having survivors of sexual assault testify, sought to conflate the real fact of gendered violence with baseless fears that transgender bathroom access was a means to perpetuate it. Transgender bathroom access, North Carolina plaintiffs argued while providing inaccurate evidence, was overwhelmingly motivated by the desire to prey on women. These recurring, and false narratives of trans women preying on cis women point to the need for development of alternative ones focused on inclusion of transgender and gender non-binary individuals. In fact, of the several states which have passed bills ensuring access to facilities according to gender identity, none reported any incidents of assault. As legal scholar Tobias Wolff notes:
There is a vast gap between the actual operation of gender-identity protections, the implementation of which has been uneventful, and the antagonists’ hysterical claims of physical, sexual, and visual invasion of the body.6
Instead of understanding the reality of the need for bathroom access, plaintiffs in the HB2 debate, “ignore[d] fundamental truths about transgender lives.”7 Before outlining solutions to this complex problem, LGBTQ cluster scholars argue that institutions need to take a dynamic approach to understanding needs that vary according to various demands of gender identity, physical ability, family and caregiver needs.
- 3. Jody L. Herman, “Gendered Restrooms and Minority Stress: The Public Regulation of Gender and its Impact on Transgender People’s Lives,” The Williams Institute available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/Herman-Gendered... 76.
- 4. Tamara Lusardi v. John M. McHugh, Secretary, Dept of the Army; Equal Employment Opportunity Commission 2015.
- 5. Terry S. Kogan, “Public Restrooms and the Distorting of Transgender Identity,” North Carolina Law Review, 95:1205 (2017), 1230.
- 6. Wolff 209.
- 7. Kogan 1233.