Gender-neutral bathrooms and the right to bodily integrity
Below is an edited excerpt from a policy recommendation written by David M. Paule, Julie La Corte, and Ethan Trinh of Georgia State University’s PRISM Faculty Affinity Group. The paper was written in response to an incident in which a student was confronted for being in the “wrong” bathroom on Dunwoody Campus.
The original 2021 document stated that current University System of Georgia (USG) policy mandates “at least one accessible gender-neutral bathroom” on each Georgia State University campus. However, when contacted in 2022, Human Resources stated that no such USG policy exists.
Personally, I think the argument from universal human rights, also provided in the paper, is stronger than any argument from bureaucratic policy. Our State continues to endanger transgender children through legislation; in retrospect, we perhaps should not have invoked the same State’s authority for protection.
But what I’ve called the “stronger” argument has thus far proven equally ineffective. No formal promise to resolve the issue, much less a date certain, has been secured from any State-authorized administrator at this time.
- [Note (Mar. 22, 2023): At the Feb. 24, 2023 Perimeter College Business Meeting, administrators announced that “unisex” restrooms will be made available at all Perimeter College campuses and that campus maps showing the unisex restrooms’ locations will be published on Perimeter College’s website. I’m leaving the above comments unchanged for the record, but the last italicized paragraph above is no longer accurate.]
Transphobes can use single-stall restrooms
The purpose of gender-neutral restrooms cannot be to segregate gender or sexual minorities away from the restroom they judge to be most closely aligned with their gender identity.
Such segregation, if adopted as policy, would qualify both as sex discrimination and as disparate treatment under federal law.
Rather, gender-neutral restrooms provide a safe space for trans* people [see note below on the term “trans*”] who voluntarily choose to use them, as was acknowledged in 2016 by GSU Associate Vice President and Dean of Students Darryl Holloman:
‘These restrooms really help to provide choice for students because you don’t want to say the trans restrooms are just for trans students, right?
‘They are an opportunity that if people feel uncomfortable or unsafe that they have safe spaces that they can utilize.’“Gender-inclusive restrooms,” StudentAffairs.GSU.edu, published Nov. 21, 2016
Individuals who do not wish to share restroom space with trans* people are not entitled to special accommodations solely on that basis.
However, single-stall restrooms effectively amount to a workable, non-coercive alternative for such individuals.
Human rights as a basis for sustainable restroom access policy
Were we to provide a summary of the legislative and political context for equity issues related to gendered restroom access, we might begin in 1852 with the earliest public flushing toilets available in Britain, which were typically restricted to men:
women never travelled much further than where family and friends resided. This is often called the ‘urinary leash’, as women could only go so far as their bladders would allow them. This lack of access to toilets impeded women’s access to public spaces as there were no women’s toilets in the work place or anywhere else in public.C. Elphick, Historic-UK.com, “The History of Women’s Public Toilets in Britain”
But we believe current and future policy disputes over restroom access can be resolved based solely on a modern understanding of fundamental human rights.
President Biden’s Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation (EO 13988) articulates several such rights:
Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.
Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.
Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.Executive Order 13988, WhiteHouse.gov, Jan. 20, 2021
Although the above excerpt from EO 13988 may be viewed by some as controversial, surely there is little dispute that every person has the right to be treated with respect and dignity and the right to live without fear.
These latter rights have been internationally codified under the general heading of “the right to bodily integrity,” which includes:
- the right to personal security ,
- the right not to be subjected to cruel or degrading treatment or punishment , and
- the right to protection of one’s mental integrity .
The meanings of these rights are plain. Their implications for policy are clear.
But the patchwork of conflicting local ordinances, state statutes and federal case law governing restroom access in Metro Atlanta over the course of the Obama and Trump administrations can hardly be said to form a clear and coherent policy.
The resulting legal ambiguity is cruel in its effects on trans* people. One is never certain whether or for how long one’s rights will be protected.
Such ambiguity can lead to extremely serious mental health consequences, including suicide, as the following anecdote illustrates.
Michele Hutchison, a pediatric doctor in Arkansas, testified in front of the state Senate last Monday, March 22, that just after the [anti-trans Arkansas Save Adolescents From Experimentation] bill passed the House, there were ‘multiple kids in our emergency room because of an attempted suicide, just in the last week.’J. Yurcaba, NBC News, “Arkansas passes bill to ban gender-affirming care for trans youth,” Mar. 29, 2021
An easily understood, unambiguous policy premised on the institution’s core values rather than on shifting legislative, political, and judicial outcomes will not only communicate a message of respect and inclusion to the GSU community—it may well save community members’ lives.
Why single-stall, gender-neutral restrooms are needed
PRISM recognizes that trans* and gender-diverse people have historically confronted, and continue to confront, degrading social treatment, ostracization from their communities of origin, identity erasure, pathologization in academic literature, hypersexualized stereotypes, dehumanizing work environments, cruel institutional policies, the never-quite-not-felt threat of physical violence by cishet male attackers, ubiquitous Othering, courts sympathetic to the “trans panic defense,” and legislation that is sociopathically indifferent to its detrimental impact on trans* people’s well-being and safety.
We therefore understand why many transgender people prefer to use single-stall restrooms, particularly those who unkindly describe themselves as “not passable” (warning: link contains hate speech). They do so in order to secure their right to be free from abuse, based on a rational assessment of risk.
On the other hand, we have not seen any evidence-based rationale for compelling any subset of trans* people to use any particular type of restroom, whether gentlemen’s, ladies’, or gender-neutral, and whether single-stall or multi-stall.
In particular, we reject the unfounded assumption that trans women are more likely than cis women to attack other occupants of the ladies’ room.
There has never been such an incident at GSU. In fact the reverse is true. Threatening behavior comes rather from those attempting to police the use of women’s restrooms.
Practically speaking, the focus and intent of much anti-trans* bathroom legislation is to police who can be present in women’s restrooms.
But supporters of laws requiring people to use the restroom of the gender assigned at birth fail to contemplate that there are transgender men who would then be required to use women’s restrooms.
Ultimately, providing single-user and gender-neutral restrooms accessible to all is seen as a logical, compromise solution. Recognizing the time and expense that solution requires does make the need for a clear and consistent campus policy more compelling.
Impact of anti-trans* environment on persons lacking White and/or economic privilege
We cannot emphasize strongly enough that anti-trans* sentiment disproportionately impacts people of color as well as working-class people of all racial and ethnic backgrounds.
- Of the names read at the 2019 Transgender Day of Remembrance vigil at Atlanta City Hall, which commemorates the lives of transgender persons murdered in the U.S. during the previous twelve months, 90% of the slain were trans women of color and/or Native American trans women.
- Any policy which conditions restroom access on one’s current genital configuration or physical appearance is undeniably economically regressive. Less wealthy people are less able to afford multiple transition-related surgeries (each costing roughly between $3,000 and $50,000), facial depilation, hormone therapy, gender-appropriate clothing, fees to amend name and gender in government records, etc. PRISM is not aware of any healthcare plan in the U.S. which fully covers the costs of gender transition.
[On the term trans*:] Here we have used the starred term trans* as an informal shorthand to describe persons who identify as transgender, persons who have a nonbinary gender or no gender, gender non-conforming persons who may be targeted for anti-trans discrimination on the basis of their self-expression, and others.
: UN General Assembly, Universal Declaration of Human Rights, 1948, Art. 3; cf. U.S. Const., amend. IV
: Universal Declaration of Human Rights, Art. 5
: UN General Assembly, Convention on the Rights of Persons with Disabilities, 2006, Art. 17
Copyright © 2021 : David M. Paule, Julie La Corte, and Ethan Trinh
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