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Transgender Bathrooms and the Constitution

The SCOTUS is about to take up the case of the rights of transgendered people to use the washrooms and changing rooms of their gender identity. This issue is, properly, a legal one and will turn on how the justices interpret the scope of existing legislation on Civil Rights and how they are interpreted under the Constitution.

I am not a lawyer. I have zero experience in interpreting the Constitution but from previous decisions on matters of this nature the court has been fairly clear. They read the law in ways that parallel their own beliefs about religion, sex and sexuality (see Burwell v Hobby Lobby). As with many of their decisions, personal bias trumps other considerations.

Accordingly, here are the issues I think will surface. First, the anti-trans crowd is relying on an argument maintaining that allowing this kind of access to transgender individuals would endanger others because transgendered persons would use this as a cover for voyeurism or even sexual harassment. If this seems farfetched, it’s not. Here’s a quote from former Arkansas Governor and presidential candidate Mike Huckabee:

“Now I wish that someone told me that when I was in high school that I could have felt like a woman when it came time to take showers in PE. I’m pretty sure that I would have found my feminine side and said, ‘Coach, I think I’d rather shower with the girls today.’”

This statement reveals a stunning ignorance of the nature of gender identity disorder. A transgendered person doesn’t flip back and forth between identities for some convenient moment any more than Huckabee could suddenly decide that he’d become homosexual for an afternoon just to see what it felt like.

Huckabee was just kidding us. He was trying to make it seem like any man who wants to get a glimpse of some T & A could just pretend to be trans and invade the woman’s locker room. He does, in his jocular way, also ignore the reality that our voyeur would quickly find himself arrested and charged with sexual misconduct.

In this context, it’s worth keeping in mind that the transgendered have been with us forever. They have been using the bathrooms of choice and no one has noticed. They routinely enter, go into a stall, do their business, (hopefully) wash their hands and leave.

The associated concern, that transgender folks would sexually molest persons is completely is without merit and unsupported by any data. In fact, a recent effort to uncover instances of transgender molestation found that the number of reported cases from states that allow transgender persons to use the bathroom of their identity is precisely zero.

The reality about molestation and assault is actually on the reverse side. Transgender individuals are frequently the target of assaults. A study by the Office of Victims of Crime found that fully half of all trans people have been the victim of assault some time in their lives. Other studies have reported this number to be as high as 65 percent.

The other argument often put forward is “locker room embarrassment.” Here, it is claimed that others might feel uncomfortable when someone who appears to be a woman is suddenly discovered to have male genitalia (fewer than one-third of transgender people have some form of gender-conforming surgery). Of the anti-trans concerns this is the only one that seems to have any heft to it — though the parallel with similar arguments made back in the days of segregation about white athletes feeling uncomfortable in the shower if blacks were allowed on their school teams is inescapable.

However, like the molestation issue, it rarely if ever comes up. Transgender individuals are, as a rule, extremely sensitive to this issue and far more distressed about possible genital displays than any casual observer might be. As with the actual use of bathrooms, trans people have been changing in locker rooms forever. They are discrete and maintain privacy. They change in bathroom stalls and shower in private or wait till they get home.

In the midst of this fuss with conservative legislators creating a solution to a problem that doesn’t exist is the very real possibility of disturbing, uncomfortable and potentially harmful circumstances that the anti-trans bills create. Imagine legally demanding that Ru Paul, shown here from his/her Facebook page, use the men’s room — and then consider all the likely scenarios.

Wonder for a moment the disruption Chaz Bono would cause when entering a women’s.


Credit: Joseph Marzillo 

The case, Grimm v. Gloucester County School Board, will reach a court still without its ninth justice. If my guess about the tilt that the justices will take is correct, we will see the four Catholic males on one side and the four more liberal justices on the other (though Roberts or Kennedy could surprise, they occasionally do). A tie means that the lower court’s ruling will stand. The Court of Appeals for the Fourth District ruled in favor of Grimm and, consequently, anti-transgender bills will be declared unconstitutional.

Of course, this is just one cognitive scientist’s opinion and it is endangered by the use of common sense and empirical data … always tricky stuff.

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