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.

locker-room-etiquette-sign-s2-1269

Coal, Sex, and Democracy

Now that the semester is over, I’m beginning to catch up on bits and pieces of trans news that I’d marked for a closer look when I had time. One item that had caught my eye was a blog post from Jacobin about the guidelines issued in April by the Department of Education suggesting that transgender students are among the groups that Title IX protects from sexual violence. In the post, “An Unlikely Transgender Rights Vanguard,” Kate Redburn writes,

As welcome, and indeed necessary, as queer legal protections are, we should be cautious about endorsing the discretionary interpretation of law by agencies. There’s nothing to say that they couldn’t just as easily have had opposite findings in these cases, thus perpetuating legal discrimination without any input from Congress, the President, or the courts. As the court wrote above, it’s a subversion of the democratic system.

….In fact, Tuesday’s DOE announcement isn’t even the first time in the past few years that an agency has interpreted federal law to protect trans* and queer people without the cover of court precedent: A series of decisions at the Equal Employment Opportunity Commission found that Title VII of the 1964 Civil Rights Act protects against gender identity-based and gender presentation-based discrimination.

….When the Employment Non-Discrimination Act has failed to pass for nearly a decade, these advances feel like a rare step forward in the fight against transphobia. They also raise troubling questions about administrative discretion and authority.

I don’t agree with Redburn’s assessment (nor, by the way, do I agree that queer includes trans, but that’s a discussion for another day). Regulations and especially administrative guidance documents like this interpretation of Title IX are part of the political process, albeit one step removed, and they change back and forth as administrations change. And to me, it’s reasonable to interpret the language of Title IX, passed in 1972 (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”) to include students whose gender identity or gender expression is not traditionally associated with their birth sex–i.e. transgender students.

But the DOE interpretation might not seem reasonable to everyone, and the larger argument that important political matters ought to be decided in the legislative arena has merit. Bringing those who haven’t made up their mind into the conversation can provide a better foundation in the long run.  Gayle Trotter, a senior fellow at the Independent Women’s Forum, agrees with Redburn on this. In a discussion about the Title IX announcement,  she pointed out that people have difficulty accepting “the fact that our society has changed and our culture has changed….and part of it is because these edicts come down that are not part of the political process, that have not been debated, and people feel like they are left out of the debate.”

There is another area where the Obama administration has relied  on regulations, rules and guidance documents rather than legislation: climate change.  Just like LGBT friendly legislation, bills on climate change have gotten nowhere in the Republican led House. So just this week, the Environmental Protection Agency proposed regulations that would interpret the meaning of “air pollution” in the 1970 Clean Air Act to include greenhouse gasses. The resulting policy changes would be far-reaching, and I’m all for them.

But I’m waiting for Jacobin to publish a post condemning these new clean air regulations as subversions of the democratic process. If put in place, they would have a much greater economic effect than a letter to schools pointing out that if they fail to protect trans kids from being bullied or beat up at school, they might be violating Title IX.  If the democratic process only occurs in the legislative arena (I don’t necessarily agree), when is democratic deliberation required and when is it not?  Where’s the consistency?