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.

The new transgender panic: men in women’s bathrooms

The “transgender panic” is often deployed by defendants in cases where someone has murdered a transgender woman. Romantic advances or sexual intimacy are usually involved. Like the “gay panic” defense, Cynthia Lee and Peter Kar Yu Kwan point out in a 2014 law review article, the defense is calculated to appeal to the jury’s own biases. As a result, in some cases a first degree murder charge may be rejected in favor of lesser charges: second-degree murder or even just voluntary manslaughter. They explain this “provocation defense is based on the idea that certain extreme circumstances might cause the average person to lose his or her self control and react in a fatally violent way. If the provoked killer’s loss of self-control is something that an ordinary person in the same situation might experience, the provoked killer is considered less culpable than the average intentional killer, and therefore deserving of some mitigation.”

It’s not clear if the majority of “ordinary persons” hold this view, but certainly many people do: a law professor doing a training on transgender issues for social service providers was told by one of the attendees: “What I think is a problem is that these transgenders lie and say they’re women to get with some man, and then he’s got to beat them up” (page 97 of the law review article linked above). In 2014, California banned defense attorneys from invoking the trans panic defense, the first state to do so.

Of course, what animates this logic is a particular cultural trope–the shock of a penis appearing where it is not expected (e.g. Neil Jordan’s 1992 film The Crying Game).  In the trans panic defense, the context is sexual intimacy.  Now, with the recent surge of anti-transgender bills, that trope has migrated from the bedroom to the bathroom. The new rallying cry, from the group that successfully campaigned against Houston’s Equal Rights Ordinance to the legislators in North Carolina who passed a bill mandating that individuals use the bathroom that corresponds to the sex indicated on their birth certificate, is “No men in women’s bathrooms.” And, for these legislators, by men they mean people with penises.  And people with penises in women’s bathrooms will, naturally, provoke justifiable violence in response. Says North Carolina State Senator David Brock, “You know, $42,000 is not going to cover the medical expenses when a pervert walks into a bathroom and my little girls are there.”

The legislation (PDF) was passed in a special emergency session on March 23rd.  Legislators had to act fast, they explained, to override a new human rights law passed by the city of Charlotte which would have gone into effect on April 1st. Charlotte’s new law included gender identity and gender expression, and, significantly, removed a sex-based exemption from their existing human rights law. Previously, the prohibition against sex discrimination would not apply to restrooms, showers, bathrooms and similar facilities. By removing that section and explicitly including gender identity, Charlotte legislators signaled that access to sex-segregated facilities would be based on gender identity. Another senator described the urgency thus: “Lawmakers were forced to come back to session to address the serious safety concerns created by the dangerous [Charlotte] ordinance…which…created a loophole that any man with nefarious motives could use to prey on women and young children.” That there have been no documented cases of transgender people assaulting women or molesting children in bathrooms did not matter to the legislators.

Five days after the bill became law, the American Civil Liberties Union and Lambda Legal Defense and Education Fund filed suit against it, arguing that the law violated the “constitutional and statutory rights to equal protection, liberty, dignity, autonomy and privacy” of LGBT people in the state. (The law also invalidated protections from discrimination based on sexual orientation.) In the original filing, the lawsuit’s plaintiffs include two transgender men who both have birth certificates designating them as female. By choosing to feature to transgender men, the lawsuit shows that it’s the legislators who have created a situation in which men will use women’s bathrooms, not the Charlotte ordinance. (The quotes from the legislators can be found in the lawsuit.)

I understand the strategy: pointing out the unanticipated effects of using “biological sex” as the proxy for gender. Both the transgender men plaintiffs are taking masculinizing hormones. And their secondary sex characteristics (such hair growth on the face, hair loss on the head, musculature, voice) are going to make them seem very out of place in a women’s room.

(Another unanticipated effect of the law, not pointed out in the lawsuit: North Carolina does require genital surgery before one’s birth certificate can be changed but an ever-increasing number of other states do not. That means that some people will have birth certificates with a gender marker that matches their gender identity without having such surgery. As of now, legally in North Carolina, a trans woman who has not had genital surgery but has had her birth certificate amended in another state will, for the first time in US history, have an affirmative right to use the bathroom that corresponds to her gender identity.)

No doubt poking holes in this bill is fun, it’s deconstructive, it shows the impossibility of having the legal category of “sex” or “gender” do the work many want it to, when every jurisdiction, every agency, can have its own rules for re-classifying sex. (This is one of the subjects of my book manuscript, now only six years overdue.)

But is simply identifying inconsistencies enough? In an essay on the contradictory politics of conservatism in Britain, Stuart Hall argues, “in our intellectual way, we think that the world will collapse as a result of a logical contradiction: this is the illusion of the intellectual—that ideology must be coherent, every bit of it fitting together, like a philosophical investigation.” Merely highlighting contradictions does not inevitably destroy the political and regulatory work that installs and arranges difference. Pointing out the impossibility of securing gender to the body in a perfectly transparent universal binary will not necessarily conjure away deeply rooted common sense notions of gender’s relation to the body,  or its equally deeply rooted imbrication in race.

The governor and the legislators are not likely to back down in the face of these inconsistencies. To wit–when Governor McCrory was presented with the situation of a transgender man, one of the plaintiffs in the lawsuit, being forced to use a women’s bathroom, he responded: “You know, we all have to make adjustments in life.” But what exactly would those adjustments be? To be realistic, most transgender men aren’t going to be able to use women’s bathrooms, even if the law gives them the right to do so. Tobias Wolfe spells out what “adjustments” really means in the Nation: “The only way these ‘bathroom bills’ make any sense is to imagine that they will make trans people cease to exist altogether. Supporters of these laws don’t want trans dudes to use the ladies’ room or trans women in men’s rooms. They want to exile trans people, exclude them from the public square, cast them out to some faraway place.”

The whole point of the lawsuit is to move the battle from the legislature to the friendlier terrain of the Obama administration and the federal courts.  With regard to schools and colleges, the new state law clearly contravenes federal interpretations of Title IX. Perhaps eventually a federal court will find that the law governing bathrooms in state agencies runs afoul of the equal protection clause–though the district court judge assigned to the case is rather conservative.

But what about the larger political situation–the rush to pass these bills, the revanchist moves of state and local Republicans to re-prosecute the culture wars by fomenting transgender panics?  And let’s not forget the penis. It’s telling that no transgender women were among the named plaintiffs.  By leaving them out, 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 seem reasonable. In 2015, twenty-one trans women were murdered in the United States, and most of them were women of color. And there are probably many many more of these murder victims, who remain uncounted because police departments do not identify them as trans or whose murders are not investigated because authorities and communities consider these lives disposable. At some point, the LGBT movement must stop colluding in the erasure of those lives and find a way to confront the virulent, entrenched misogyny and racism directed as these women. Even in the relatively antiseptic context of impact litigation, the movement could use this litigation to open rather than avoid the question of what underlies the hostility directed at trans women.