Locker Rooms are the New Bathrooms–Bodily privacy and the opposite sex

Locker rooms are the new bathrooms. Officials in Maryland are in court to keep 16-year-old Max Alexander Brennan out of the boys’ locker room. According to the Washington Post, school administrators “have said they must look out for all students, who have a right to ‘bodily privacy’ and should not be forced to undress in front of the opposite biological sex.”

Of course, the idea of “biological sex” is nonsense, and in more than only way. How will these officials define biological sex–as the sex assigned at birth, as a post or “partially” transitioned body, or as gender identity? It’s gender identity that’s the criterion for M/F classification on drivers’ licenses in 32 states, and for US passports. In fact, as I argue in my book, there’s no there there when it comes to deciding who is F and who is M. In the past, what sex is depended on what sex does for a particular institution. More recently, it’s become a particularly charged site for the re-prosecution of the culture wars. During the Obama administration, gender identity became the metric for F or M in a number of departments, from Education to Housing and Urban Development. The Trump/Pence administration is not so enamored of officials interpreting sex to include gender identity. (Neither were our friends at Jacobin: for them, sex means as assigned at birth until legislators decide otherwise). That’s why the Trump/Pence crown has been undoing these regulations wherever they can. At least the feds have zero ability to rollback progressive state policies. (Go states! Yay federalism!)

Still, let’s stipulate that biological sex is just one thing (which it’s not)–defined, say, by the presence or absence of penises, breasts, or vaginas. Even so, those appendages don’t stare at people, people do–1990s SNL skits notwithstanding. Of course, the messiness of a concept like biological sex in no way prevents state actors from using the force of law to clean it up, give it a shave and haircut, and declare that it’s simply common sense. Judges, state agencies, legislatures can and do define who is male and who is female. Much as many of us would like to get states out of the business of telling people whether they are women or men or even gender non-binary, we still have a long way to go. But good luck trying to wrest people’s gender identity from them. In many of the older cases on sex classification, even judges who found that transsexual women were “really” men, and vice versa, would often use the respectful pronoun. In locker rooms, birth certificates aren’t floating around looking for a place to change and a hook for their clothes, people are–with all our complex desires, identifications, and contradictions.

Aside from the nuttiness of worrying about “female” vaginas looking at “male” penises and vice versa, there’s a larger problem here. The idea of bodily privacy is important, in itself and also because it can be the springboard for more substantive rights, such as the right to bodily integrity and autonomy. But why is bodily privacy thought only to mandate protection from the presence of the “opposite sex”? Because…heterosexuality, of course, and because of the gender binary that underwrites it, and–this is where the opposition to trans students come in–because of the assumption that sex is what’s between your legs. In the ideal locker room of the right, everyone is 100 percent straight, everyone’s gender identity matches the sex assigned to them at birth, and no one is looking at anything other than the soap dispenser. (“Keep your eyes to yourself,” the locker room etiquette sign–see  below–admonishes.) Everyone is equally fit, equally able-bodied, and equally beautiful in each others’ eyes. And all the sexualized body parts conform to the Lake Wobegon rule–everyone’s bits are (equally) above average. There’s no judgment, no comparison, definitely no desire to have or to be another body.

That would be unlike every locker room I’ve ever been in. While conservatives are worrying about what’s underneath my towel, I’m fretting about what’s hanging out above it. As someone who is a step or three beyond the dad bod, I’m concentrating on sucking it in on the walk to my locker.

A right to bodily privacy that only cares about hetero/gender normativity, implemented through the blunt instrument of gender segregation–whatever the rule for classifying people as M or F–takes one aspect of our embodiment as its entirety. What about the right to not be seen by people who are fatphobic, by people who think colostomy bag is weird, by people who stare at scars, by people who judge someone for breast pumping, by people revolted by the aging body? Establishing bodily privacy will require much more imagination–and resources–to partially undo the hierarchies of difference established through the architecture of the locker room.

Finally, back to the transgender question–although the right has been scare-mongering about the (non-existent) dangers of transgender people in bathrooms for a few years now, public opinion is moving toward a gender identity standard for bathrooms. But with locker rooms, so-called reasonable people are still very susceptible to the notion that body parts shouldn’t be in mixed company. Almost twenty years ago, Congressional Representative Barney Frank, one of the few gay rights advocates in Congress at the time, told trans advocates that “Transgendered people want a law that mandates a person with a penis be allowed to shower with women. They can’t get that in ENDA [a federal non-discrimination bill].”  That view didn’t disappear with Frank’s retirement. The locker room is the next phase of the right wing’s assault.


What will happen to trans people now?

Here’s the short answer: trans people who were already especially vulnerable to discrimination and violence before the election–the homeless, the incarcerated, undocumented immigrants, sex workers, among others–are going to be even more vulnerable. For those with (some of) the security that class, whiteness, ability, employment provides, it’s not going to be the apocalypse, but there will be probably be some minor rollbacks and you should definitely get your federal IDs in order. (The National Center for Lesbian Rights has an excellent FAQ on that.) The election shouldn’t change our priorities–just as before, we need to focus our activism on the trans people at the margins.

There is no one who has more experience working with government–courts, agencies, legislatures–on trans policy issues than my very good friend Shannon Price Minter. A reporter asked Shannon, who is the Legal Director at the National Center for Lesbian Rights, what he thought trans people should be concerned about now. Here is his answer:

I remain optimistic that we will not see major rollbacks of the gains transgender people have made in the past two decades. Many of those gains are based on federal civil rights statutes and federal court precedent, which cannot be quickly undone. I am also optimistic that the US Supreme Court will affirm that Title IX protects transgender students in the case now pending before them.  Many states have also enacted policies and laws protecting transgender people, and social acceptance has reached a critical mass that will only continue to grow.  There is much for our country to fear from the incoming administration, but there is no immediate reason to believe that transgender people will be a particular target, though certainly we may lose some executive agency protections and will no longer have a strong champion in the White House.

I am most deeply concerned about the impact of heightened deportation on undocumented transgender people, many of whom have fled life-threatening situations.  I am deeply concerned about transgender people on Medicare and Medicaid, and transgender people living with HIV, as proposals to privatize and cut back on these public benefits proliferate in the Republican Party. Many transgender people in this country are living in poverty and hanging by a thread. Any further erosion of our nation’s already paper thin safety net will be devastating for many transgender people who have been pushed to the margins of our society.  There is also reason for concern about an escalation of police violence against transgender people, and particularly transgender women who are engaged in survival sex work and already face so much often race-based profiling and brutality, both from police and others.

It is distressing to see the far right’s elevation of issues around transgender people and restrooms eclipse these broader issues.  Like others in our country, transgender people want to be able to live safely, to be able to work and have access to decent healthcare, and to be able to live with  dignity.  We don’t want to be in the crosshairs of a trumped up culture war.

So, there you have it from someone who knows whereof he speaks.

A final word. It’s only human to put oneself at the center of things–as a victim, as a hero. But let’s try to edit that first draft. If you weren’t especially vulnerable before the election, you’re still not that vulnerable compared to others in our community.  If you’re not in the trans “precariat,” don’t panic,  just act.  Get your own ID ducks in a row, certainly, and then start to organize and be organized.

Understandably, there’s a non-profit money grab going on now. If you can give, give to the organizations that focus on the margins, not on the mainstream.

Feminism, Gender Pluralism, and Gender Neutrality: Maybe it’s time to bring back the binary

Why is there so little talk of boycotting anti-abortion states? Tim Cook, Mark Zuckerberg and other CEOS appear to have no hesitation calling anti-LGBT laws “bad for our employees and bad for business.” So why are they so silent on ant-abortion legislation? (SF Gate has a useful summary of anti-LGBT legislation. And for state anti-abortion initiatives the Guttmacher Institute has a page that describes what these bills and laws attempt to regulate or ban.) The SF Gate list points out how many of the anti-LGBT bills (e.g. Arkansas, Georgia, Indiana, Wyoming) failed to passed or were revised because of threats from businesses. The Human Rights Campaign suggests it’s because corporate employee resource groups for women must not be be pushing the issue, unlike their LGBT counterparts. But that explanation can’t be the whole story.

(Warning–this is a longish read, working out some ideas for the book and needed to imagine an actual audience. I can’t provide the definitive answer to the question of how support for LGBT rights have outpaced abortion rights or women’s rights generally.  But I’m working out a few ideas on how the concept of transgender figures in all of this.  This is still rough, comments welcome. Part of this is based on a talk I gave at the CUNY Graduate Center, “Are Transgender Politics Feminist?” in November.)

In the last decade, movements for transgender equality appear to have advanced  with astonishing speed, while other issues of concern to women’s movements have largely stalled, either making little progress (equal pay) or suffering real setbacks (abortion access). From policy reforms to public opinion trends, it seems that the situation has changed faster, and in a more positive direction, for trans people than for women. (And yes, of course I include trans women in the category of “women.”) This apparent gap may be exacerbated in the United States: at the conclusion of the culture wars of the last forty years, the almost inseparable bond between movements for sexual and gender freedom that marked liberationist discourse of the 1970s has been torn asunder, reconstituted through the logic of an identity politics that affirms the demands for recognition of sexual and gender minorities but finds the misogyny that still structures all women’s lives less intelligible, outside the scope of the liberal project of inclusion. One 2015 poll (PDF), for example, found that 72 percent of the millennial generation in the United States favor laws banning discrimination against transgender people—a proportion very close to the 73 percent who support protections for gay and lesbian people. But only 55 percent of this generation, born between 1980 and 2000, say abortion should be legal in all (22 percent) or some (33 percent) cases.

Given this divergence in public opinion on LGBT and abortion access, then it’s no wonder that businesses are silent on abortion rights (not to mention redistributionist demands for reproductive justice, which really aren’t ” business friendly”). But how did we get to this point? What happened? It’s as if second-wave feminism was surpassed by the next wave before it could realize its goals: eliminating or radically reorganizing the economic structures (targeted by Marxist and socialist feminists) and institutions and norms (targeted by cultural and liberal feminists) responsible for the subjugation of women. But burdened internally by the racial and class hierarchies it reproduced, limited by an analytical framework that invariably prioritized the workings of the sex/gender binary over other oppressive processes, and confronted externally by emerging neoliberal technologies of governance that could accommodate new articulations of social difference without having to modify the fundamental algorithms for the distribution of inequality, second-wave feminism was not equipped to succeed. Certainly, the long-term transformative potential of the sex positive, trans-affirming, more racially aware and engaged, and more politically ecumenical third/fourth wave remains unknown, but there is some promise in the ways it has departed from the various grand narratives of the European Enlightenment, which include the third/fourthwave’s refusal to accede to the ontological priority of any particular group; its capacity to make visible the effects of power on vastly different scales, from the molecular to the global; and its rejection of the primacy of traditional political forms (the party, legal institutions) in favor of situating resistance in cultural moments and provisional events.

A little background on what “transgender” has come to mean: By the late 1990s, the division between what Jay Prosser called the transsexual who “literalizes” gender, and the transgender who “deliteralizes”  has been resolved: “transgender” emerged as the conceptual victor. Its very plasticity meant it could accommodate specificity of all kinds—including “wrong body” transsexuals–under the abstract construction of gender non-conformity. At this point, the notion of a “transgender umbrella” emerges as an educational device to represent (or to contain) all the many different forms of gender non-conformity extant at any one time and in any one place. As Ben Singer recounts, one of its earliest documented sightings was in the form of a “a hand drawn umbrella with an open canopy stretched over a now dated set of terms: “crossdresser (‘drag’),” “transvestic fetishist,” “transvestite,” “transgenderist,” “’transsexual” and “man/woman.” Since then the term “transgender” imagined as an umbrella has never stopped expanding, and generates a seemingly endless proliferation of practices and identities. Susan Stryker explains that transgender now stands for “any and all kinds of variation from gender norms and expectations.”

The political function of the transgender umbrella was to aggregate all these disparate ways of being together in order to constitute a group organized around a coherent politics of identity that could become a political force. And in that way, it has been very successful. But “transgender umbrella” obscured and continues to obscure fundamental disagreements between those it shelters about sex, about gender and the gender binary, about transition, the ontological status of the body, the fixity of gender, differential vulnerabilities based on race and class. In short, there are lots of noises coming out from underneath the transgender umbrella–it’s not at all harmonious, it’s actually quite cacophonous if you’re listening.

The point of this very abridged genealogy of  “transgender” is show how the term found an intellectual foundation in the trends in what became the dominant tendency in US feminist theory. Just as transgender superseded transsexual (by absorbing it), the notion of gender won out over the conceptual frame of sex difference. Rather than seeing gender/sex as a binary structure defined by the Symbolic, as in French psychoanalysis or by the somatic, as in American radical feminists, what was then called postmodern feminism has, as Rita Felski put it in 1996, “sought in different ways to break out of the prisonhouse of gender by reconceptualizing masculinity and femininity as performative, unstable, and multiply determined practices.” The fixed sexual binary was replaced by what people took to be gender fluidity and multiplicity, endlessly proliferating gender differences. And of course, with that approach, the binary became a continuum, eventually an embarrassment, and sex was absorbed into gender (much as transsexual was uneasily absorbed into transgender). Through all this somehow transgender maintained its dual use. As a term of identity politics, it represents a group of people defined by gender non-conformity. In theory, on the frontiers of gender activism, it can signal the fundamental instability of any kind of gender practice, conforming or not. (I had not realized until just now when I looked it up that “dual use” originated in the Cold War to describe technologies that can be used for both war-making and peace-making.)

Much was gained with this move away from the centrality of the sex/gender binary. The sexual difference framework established that binary as universal, ahistorical, and primary, and as a consequence analyses focused on race, class, and other intersectional social locations were pretty much impossible. One could focus on the social and material determinants of differential vulnerabilities of actual people rather than just re-read Lacan or Mary Daly. Gender provided a theoretical home for queer and trans gender subjects that sexual difference mostly could not.

But one crucial tool was lost: the emphasis on asymmetry. A gender theory, a transgender umbrella, that transcended the binary, that observed and enabled a multiplicity of differences, could no longer say much about women’s subordination, in the parlance of the second wave. As Rosi Braidotti asked Judith Butler in 1994, a few years after Gender Trouble was published and had begun to change everything, “Whatever happened to sexual difference understood as the dissymmetrical power relations between the sexed subjects?’”

What are the consequences of this shift away from the gender binary and toward gender pluralism?  For one thing, misogyny begins to disappear from our political lexicon.  As I wrote in a post on “disappearing women” last year, while it’s certainly right to demand that providers of reproductive health services use trans-inclusive language, we lose important historical and analytical frameworks for understanding the restriction and possible ending of abortion as part of a war against women.

With the rejection of a binary organized around sexual difference, and the concomitant inability to acknowledge asymmetrical gendered power relations, we no longer have the ability to examine how gender still matters in the unjust distribution of resources, how one’s position toward the feminine end of the continuum (if not the binary) still has effects. Instead, the agenda becomes the demand that all forms of gender difference be included and recognized. For all those many kinds of people under the transgender umbrella, politics focuses now on all the ways in which gender can be remixed: from the now traditional male-to-female and female-to-male transition trajectories to genderqueer to non-binary.

That is all well and good, it’s necessary, and important and that has been much of what I’ve focused on in my earlier work. Indeed, at earlier points in my own intellectual history, I’ve suggested gender pluralism should be a or the goal of trans movements for equality. I saw it as a move away from identity-bound rights discourse and made room for both a critique of the medical model (in which transsexuality is seen as merely reinscribing gender) and a critique of the critique (in which transgender as it’s been absorbed into queer theoretical projects becomes the new revolutionary class). I thought of gender pluralism as an arrangement in which transsexual and genderqueer narratives would not cancel each other out.

My approach was, I have to say, necessarily liberal in that it centered the quests for recognition of trans communities, sub-communities, genres. Now, however, it’s become clear that this sort of gender pluralism and the reconstructed autonomy that attends it resonate deeply with a neoliberal ethos that has begun to value gender “diverse” people as a potentially valuable forms of human capital. In this vein, Jasbir Puar describes (PDF) a new transnormative body, one “predicated not on passing but on ‘piecing,’ galvanized through mobility, transformation, regeneration, flexibility, and the creative concocting of the body.” In the new metrics of diversity, no one under the transgender umbrella, regardless of the form their gender non-conformity takes, should be locked out of the market.  As a form of human capital, gender non-conformity is something we can attend to, invest in, turn into a commodity.

At one point, matters of recognition for trans people and feminist projects were more deeply linked, though few outside trans communities understood this early on.  Longtime trans activist Phyllis Frye certainly did–though her arguments about the importance of transgender quests for recognition to the same-sex marriage debate were pretty much ignored by the gay rights impact litigators who did not want the stigma attached to transsexuals to contaminate the marriage equality movement. Julie Greenberg’s important 2000 article, “When is a man a man, and when is a woman a woman,” explained that the transsexual marriage cases could have “a profound effect on the rights of gays and lesbians to marry.” Gender has long been a mechanism for the distribution of resources, rights, and obligations: coverture, property and inheritance rights, military service, marriage and the benefits that come with it.

But for gender to do that work, agencies need systems of sex classification, which are effectively metrics for sex re-classification. States couldn’t ban same-sex marriage, Congress couldn’t pass the Defense of Marriage Act, if there were no method for deciding who was a man and who was a woman.  Marriage determines parenting rights, inheritance, access to social security rights, and many other things. Distinguishing between an opposite-sex marriage and a same-sex marriage depends on the power of state actors to make sex classifications, as the trans marriage litigation makes very clear, which I talk about in another chapter. If a trans person’s new gender was to be officially recognized a state agency, the “transition” had better be permanent, trans advocates were told again and again. And surgery was assumed to guarantee permanence. Lisa Jean Moore and I wrote about the presumed importance of permanence in a 2009 article, “‘We Won’t Know Who You Are’: Contesting Sex Designations on New York City Birth Certificates.”  (In case you’re wondering, I use “sex” to refer to M/F classifications backed by the force of law; I use gender to refer to identities, norms, social arrangements, etc.)

As gender becomes less and less a legal mechanism for distributing rights and resources, transgender issues get de-coupled from feminism, although few saw that connection when it mattered most. Now that same-sex marriage is legal in all fifty states, systems for sex classification are beginning to matter less and less–at least for the purposes of marriage. For other state projects, like incarceration, sex classification still matters a great deal. But, overall, the general trend is toward more recognition for more people: sex re-classification systems are beginning to move away from requiring surgery or other body modifications. We’re not there yet, but at this rate of change it’s possible to envision the coming of a gender pluralism recognized by states and valued by markets.

In the move to gender pluralism, to gendered multiplicities of becoming, the sex/gender binary is necessarily displaced by the narrow legal construction of gender neutrality. As a result, even situations that aren’t at all gender neutral as treated as if they were. For example, GLBT legal advocates initially did not include any trans women as named plaintiffs in their lawsuit challenging North Carolina’s HB2, which was passed in part because of the panic surrounding the idea of trans women using women’s bathrooms. As I wrote in a post about the new bathroom trans panic last month, leaving them out [in favor of two trans men], the legal groups skirted around the crux of the controversy. That may be a reasonable legal strategy, but it’s not a political response to a raging conservative anti-trans agenda. Nor is it a response to the violence wrought upon trans women. Some of that violence is made possible by the same ideas about gender that make the trans panic defense for homicide seem reasonable.” Here the the legal intervention into the bathroom rule was based on the abstract category of “transgender.” This case shows how gender neutrality projects the too analytically neat assumptions of the legal sphere onto the social, and makes it difficult if not impossible to challenge the misogyny that trans women encounter and that underwrote the rule in the first place.

I’m not suggesting that we rehabilitate the sexual difference framework in its entirety. Any conceptual framework, from the sex/gender binary to the transgender-cisgender dichotomy, risks ossification, risks turning what had been a provisional and generative idea into a methodological imperative that over time obscures more than it reveals.  Plus I am too old a dog to start reading Lacan now, and I’m not interested in going back to the radical feminists or, heaven forbid, trying to convince TERFS of anything. But I do think that, in particular moments and circumstances, we need a transgender feminist approach that is not gender-neutral–that dares to identify asymmetry when it sees it.