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.