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Thursday, July 14, 2016

Privacy and Transgender Bathroom Access

In the litigation and public debate surrounding transgender people’s rights to use the bathroom, two of the principal issues are the meaning of “sex” and the privacy rights of everyone using restrooms or locker rooms. In this post, I’ll address the privacy claims because doing so highlights, to me, that separate and apart from the merits of any interpretive debate on the statutory meaning of “sex,” the underlying real world concerns of all involved are, in fact, not in conflict. Transgender bathroom access does not harm or implicate the privacy concerns of anyone else. Conversely, excluding trans people from bathrooms consonant with their gender identity publicly outs them every time they use the facilities.

Opponents of permitting trans people to use the bathroom corresponding to their gender identity seem concerned that a person’s genitalia will be seen by someone with different genitalia, or that a person may see genitalia different than their own. In terms of both logistics and law, these concerns seem overstated.

First, bathrooms provide private spaces—stalls. This is true even in men’s rooms. So, if someone has a concern about who sees their genitalia, or if one prefers not to view another person’s, one can use the stall and avoid the urinals. Even in locker rooms, practical solutions such as privacy curtains can be affordably installed to provide greater privacy to those who desire it. Such curtains have been endorsed by the Department of Education.  

Second, to the extent there is concern over someone’s prurient interest, those supporting bathroom bans overlook issues of sexual orientation. Transgender people—like cisgender people—can be straight, gay, or bi. Our gender does not dictate our sexuality. That’s to say, a straight transgender woman will have no sexual interest in other women in the restroom. But even if she did, we obviously permit gay men and lesbians to use public restrooms and changing facilities, so why should trans people be treated differently?

Third, the myth that transgender bathroom access somehow represents a risk of sexual violence has already been empirically refuted by government officials in jurisdictions that have trans-inclusive policies. Existing laws prohibit voyeurism and violence and transgender bathroom access doesn’t change that.

Although privacy is not endangered by the presence of transgender people, excluding trans people does endanger their privacy and safety. Forcing transgender individuals to use a bathroom that does not correspond with their gender identity and outward gender expression outs that person as transgender each time they use the public restroom.

Of course, transgender people should feel no shame over their identity or their bodies—quite the opposite. But unfortunately, misunderstanding and, at times, animus toward transgender individuals is not uncommon. As discussed in my previous post, transgender people are subject to high levels of violence, poverty, incarceration, and employment discrimination. And because comprehensive nondiscrimination protections for transgender people are lacking, maintaining privacy over one’s trans status may be critical to a range of activities from obtaining a job to keeping safe.

As such, to the extent this debate is about privacy, the real world harms seem to tilt in favor of access for transgender individuals, not exclusion.  

The same holds true for privacy law.

While in broad strokes case law supports constitutional limits on the government’s ability to disseminate our private, intimate information, the cases relied on by proponents of transgender exclusion do not support their argument here.

For example, proponents of trans exclusion have relied on cases involving a female police officer being videotaped partially nude by a male colleague after taking a decontamination shower, schools installing video cameras in student locker rooms, strip searches of students, and the forceful removing of an inmate’s underclothes. These are, of course, horrific privacy invasions. But they are quite distinct from the mere presence of transgender people using facilities corresponding to their gender identity. As the Fourth Circuit Court of Appeals acknowledged in its recent decision in G.G. v. Gloucester County School Board, it is doubtful that a trans student’s “use of the communal restroom of his choice threatens the type of constitutional abuses present” in such appalling privacy cases.

Instead, to the extent that the law recognizes limits on the government’s ability to disseminate personal information (and it does), courts enforce those limits most rigorously when information regarding a stigmatized characteristic is disclosed—for example, one’s HIV status, minority sexual orientation, or transgender identity. This is because disclosure of that information can result in further harm to the individual, including discrimination. And certain courts have specifically held that laws that out a person’s transgender status implicate this right to informational privacy.

In other words, the right to informational privacy—the right to limit disclosure of one’s information—appears to be at its zenith when dealing with information that might expose someone to stigmatization, discrimination, or some other concrete downstream harm.

As noted, in a world with continued misunderstanding and hostility towards trans people, there can be little doubt that outing of a person’s transgender status can lead to very real harms. The constitutional right to privacy restricts such outing.

*Parts of this post draw on articles of mine first appearing in Slate and Salon.

Posted by Scott Skinner-Thompson on July 14, 2016 at 11:20 AM in Constitutional thoughts, Gender, Law and Politics | Permalink


Scott: those arguments (bonding, development, opportunities) might save segregated soccer but it is hard to see how they save segregated bathrooms or locker rooms.

If the argument you are making tends to lead inevitably to the conclusion that, at least in government institutions, segregated bathrooms and locker rooms cannot meet the intermediate scrutiny test then it seems rather besides the point to discuss how trans people should be considered in a system of segregated bathrooms and locker rooms.

Posted by: john | Jul 15, 2016 12:34:12 PM

Anne Danielson
to Brian.Cornell
Jun 9Details

“I think it’s part of our obligation as a society to make sure everybody is treated fairly and our kids are all loved and protected." - President Obama
Promoting showering and undressing in front of the opposite sex is a form of sexual abuse which is physically, psychologically, emotionally, and spiritually harmful to all persons. President Obama needs to explain how he came to the conclusion that promoting acts that promote and condone sexual abuse, is a means to demonstrate to our beloved sons and daughters that we Love them and desire to protect them from physical, psychological, emotional and spiritual harm.


“The government and media alliance advancing the transgender cause has gone into overdrive in recent weeks. On May 30, a U.S. Department of Health and Human Services review board ruled that Medicare can pay for the “reassignment” surgery sought by the transgendered—those who say that they don’t identify with their biological sex. Earlier last month Defense Secretary Chuck Hagel said that he was “open” to lifting a ban on transgender individuals serving in the military. Time magazine, seeing the trend, ran a cover story for its June 9 issue called “The Transgender Tipping Point: America’s next civil rights frontier.”
Yet policy makers and the media are doing no favors either to the public or the transgendered by treating their confusions as a right in need of defending rather than as a mental disorder that deserves understanding, treatment and prevention. This intensely felt sense of being transgendered constitutes a mental disorder in two respects. The first is that the idea of sex misalignment is simply mistaken—it does not correspond with physical reality. The second is that it can lead to grim psychological outcomes.
The transgendered suffer a disorder of “assumption” like those in other disorders familiar to psychiatrists. With the transgendered, the disordered assumption is that the individual differs from what seems given in nature—namely one’s maleness or femaleness. Other kinds of disordered assumptions are held by those who suffer from anorexia and bulimia nervosa, where the assumption that departs from physical reality is the belief by the dangerously thin that they are overweight.
With body dysmorphic disorder, an often socially crippling condition, the individual is consumed by the assumption “I’m ugly.” These disorders occur in subjects who have come to believe that some of their psycho-social conflicts or problems will be resolved if they can change the way that they appear to others. Such ideas work like ruling passions in their subjects’ minds and tend to be accompanied by a solipsistic argument.
For the transgendered, this argument holds that one’s feeling of “gender” is a conscious, subjective sense that, being in one’s mind, cannot be questioned by others. The individual often seeks not just society’s tolerance of this “personal truth” but affirmation of it. Here rests the support for “transgender equality,” the demands for government payment for medical and surgical treatments, and for access to all sex-based public roles and privileges."
With this argument, advocates for the transgendered have persuaded several states—including California, New Jersey and Massachusetts—to pass laws barring psychiatrists, even with parental permission, from striving to restore natural gender feelings to a transgender minor. That government can intrude into parents’ rights to seek help in guiding their children indicates how powerful these advocates have become.
How to respond? Psychiatrists obviously must challenge the solipsistic concept that what is in the mind cannot be questioned. Disorders of consciousness, after all, represent psychiatry’s domain; declaring them off-limits would eliminate the field. Many will recall how, in the 1990s, an accusation of parental sex abuse of children was deemed unquestionable by the solipsists of the “recovered memory” craze.
You won’t hear it from those championing transgender equality, but controlled and follow-up studies reveal fundamental problems with this movement. When children who reported transgender feelings were tracked without medical or surgical treatment at both Vanderbilt University and London’s Portman Clinic, 70%-80% of them spontaneously lost those feelings. Some 25% did have persisting feelings; what differentiates those individuals remains to be discerned.
We at Johns Hopkins University—which in the 1960s was the first American medical center to venture into “sex-reassignment surgery”—launched a study in the 1970s comparing the outcomes of transgendered people who had the surgery with the outcomes of those who did not. Most of the surgically treated patients described themselves as “satisfied” by the results, but their subsequent psycho-social adjustments were no better than those who didn’t have the surgery. And so at Hopkins we stopped doing sex-reassignment surgery, since producing a “satisfied” but still troubled patient seemed an inadequate reason for surgically amputating normal organs.
It now appears that our long-ago decision was a wise one. A 2011 study at the Karolinska Institute in Sweden produced the most illuminating results yet regarding the transgendered, evidence that should give advocates pause. The long-term study—up to 30 years—followed 324 people who had sex-reassignment surgery. The study revealed that beginning about 10 years after having the surgery, the transgendered began to experience increasing mental difficulties. Most shockingly, their suicide mortality rose almost 20-fold above the comparable nontransgender population. This disturbing result has as yet no explanation but probably reflects the growing sense of isolation reported by the aging transgendered after surgery. The high suicide rate certainly challenges the surgery prescription.

Posted by: N.D. | Jul 15, 2016 12:30:47 PM

John, to your question, probably shakier ground, but I can imagine some legit govt interests for sex segregation that don't pertain to potential exposure to different genitalia. As an example, there may be a belief that segregated spaces or activities (particularly segregated sports) are important for bonding, development, opportunities, etc., Segregation might promote those interests (and, at the same time, the presence of trans people wouldn't meaningfully undermine those interests). That said, there may be some paternalism in these justifications to the extent they are premised on a notion that women are in need of their own spaces where they can develop/exist without the presence/competition from men--that's another important debate.

Elizabeth, to your point, you are absolutely correct that women's safety (including trans women's safety) is critically important and I suspect that many trans advocates view themselves as standing shoulder to shoulder with women. But permitting trans women to use bathrooms consistent with their gender identity doesn't sanction violence or voyeurism (whether it be from other cisgender women, transgender women, or men masquerading as women for the purpose of committing violence). Moreover, as to the last category (men masquerading as women for the purpose of committing violence), they are functionally able to attempt this without or without the presence of transgender legal protections. Such violence is against the law and will remain against the law. Finally, there are many examples of same-sex voyeurism/lewdness (see, e.g, Senator Larry Craig). All this is to say, of course violence against people in bathrooms is terrible, but legally recognizing trans people's rights to use the bathroom doesn't lead to an uptick in violence (as the law enforcement officers referenced in the link from my post suggest), doesn't in anyway condone that violence, and there is nothing suggesting that trans women are more likely than cisgender women to commit any such violence.

Posted by: Scott Skinner-Thompson | Jul 14, 2016 8:34:55 PM

It is simply not accurate to claim that there are no or few instances of transgender people invading the privacy or threatening the security of others in bathrooms and locker rooms. In fact, there are many instances of this over the years. One was reported today in the New York Times. Anyone who cares to do a bit of research can find many others.

Here is the link to the New York Times article from today: http://www.nytimes.com/2016/07/15/us/target-transgender-idaho-voyeurism.html?module=WatchingPortal&region=c-column-middle-span-region&pgType=Homepage&action=click&mediaId=thumb_square&state=standard&contentPlacement=3&version=internal&contentCollection=www.nytimes.com&contentId=http%3A%2F%2Fwww.nytimes.com%2F2016%2F07%2F15%2Fus%2Ftarget-transgender-idaho-voyeurism.html&eventName=Watching-article-click&_r=0

I support the rights of transgender people to be free from physical violence, employment discrimination, and other kinds of discrimination. However, the rights of women to privacy and safety in bathrooms and locker rooms are just as important. Those rights have been consistently dismissed in the debate in recent months.

Posted by: Elizabeth Inglehart | Jul 14, 2016 7:48:09 PM

"My point is that comparing the presence of trans people to, for example, a strip search is a false equivalency in terms of the level of invasion."

Okay, I see that now.

That raises a different question, if there is a relatively low level of invasion in having the "wrong" type of person in a bathroom or locker room (leaving aside for the movement how to define that) then aren't segregated facilities in state buildings on constitutionally shaky grounds under the important state interest prong of the intermediate scrutiny test?

Posted by: john | Jul 14, 2016 4:56:35 PM

My point is that comparing the presence of trans people to, for example, a strip search is a false equivalency in terms of the level of invasion. To your question, I can easily imagine a cognizable interest in not being searched by someone of a different sex. I can also imagine a person being more comfortable with a search by someone of a different sex, particularly if the searchee is gay. Of course, as your caveat/assumption suggests, none of these answers resolves the meaning of sex.

Posted by: Scott Skinner-Thompson | Jul 14, 2016 2:00:17 PM

I'm not sure I understand the distinction you make in the last few paragraphs.

Dealing only with cis-gendered people for the moment:
Where strip searches are constitutionally authorized do you think the searchee has a cognizable interest in being searched by a state agent of the same sex?

Posted by: john | Jul 14, 2016 12:20:40 PM

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