Adam Winkler is a professor at UCLA School of Law who specializes in American constitutional law. This op-ed was originally published June 12 in the New Republic.
Where should a transgender schoolgirl be allowed to pee? To some, this may sound like a minor, insignificant question, but not to Nicole Maines, a 15-year-old transgender girl who attended Maine public schools. Born a boy biologically, Maines now self-identifies as a girl, dressing in girls’ clothing and sporting a typical 15-year-old girl’s hair and makeup. In addition to the harassment she faced from other kids, Maines also met intolerance by school officials, who refused to allow her to use the girls’ bathroom. Instead, in a remarkably insensitive decision, the school required her to use a staff bathroom after a grandparent of a male student complained that Maines shouldn’t be allowed in the little girls’ room.
Maines’ parents took her out of the school and sued the school, claiming their daughter’s potty segregation was a violation of Maine’s Human Rights Act, which prohibits discrimination against transgender people on the basis of their gender identity. While Maine’s Human Rights Commission held that the transgender girl was entitled to use the girls’ bathroom, a state court judge disagreed. Maine’s Supreme Court on Wednesday will hear her case, the latest evidence that the next frontier of the civil-rights movement is transgender and transsexual equality.
We often talk about "LGBT rights," but many of the reforms to date, like civil unions and marriage equality, are primarily benefiting the Ls and the Gs (and, by extension, the Bs). The legal issues surrounding full acceptance of trans-people are likely to be messier and more confusing — and bathrooms are proving a familiar flashpoint. In Colorado, for instance, the parents of a 6-year-old girl have challenged their local school district’s refusal to permit their daughter to use the girls’ room because, biologically, the girl was born a boy and retains male genitalia. School authorities said she can use any other bathroom in the school—the boys’ bathroom, the staff bathroom, or the one in the nurse’s office—just not the one for girls. In Arizona, lawmakers have been considering a bill to prohibit transgender people from using the biologically "wrong" bathroom. The Philadelphia City Council may go the other way, by requiring new city-owned buildings to include gender-neutral bathrooms.
Restrooms are one of the last explicit vestiges of segregation on the basis of sex. In a nation evolved enough to allow women to serve in combat and have women on the presidential ticket, we still maintain strict and outdated rules that discriminate in who can use which restroom. Even at liberal law schools like UCLA, where I teach, the bathrooms are all clearly marked for gender uses in a way that no one would accept for race: there are rooms labeled specifically for men and others specifically for women.
Most people don't question this form of separate-but-equal, perhaps because there don’t appear to be inequalities engendered by gendered bathrooms. (This, despite the fact that there often seem to be much longer lines to use women’s rooms.) The controversy over transgender students, however, may force us to reconsider our sex-specific bathrooms. As our society becomes more tolerant of gender differences, especially in the context of transgender people, the issue will continue to arise. More and more people, even children, are comfortable admitting their gender identity, even if it isn’t the one that matches their biological gender at birth, and parents are increasingly willing to fight school policies that prevent their children from using appropriate facilities.
We don’t necessarily need to eliminate gender-specific bathrooms to solve the problem—or even create a third (and fourth) category of bathroom. We can simply allow transgender people to use the bathroom that corresponds with their gender identity. In the school setting, this can be easily accomplished by having parents with transgender children choose which bathroom their kids will use. Especially for underage schoolchildren, this shouldn’t pose a threat to anyone. (And if the idea of a transgender person using your bathroom makes you uncomfortable, consider that that you share a bathroom with gays or lesbians all the time—and probably don't even notice it.)
As these cases remind us, our tolerance for sexual difference still has a long way to go. We may pat ourselves on the back for ending "Don’t Ask, Don’t Tell" or supporting marriage equality (as Maine has done), but transgender and transsexual people are often left unaccounted for. Perhaps this is why a recent study by the National Center for Transgender Equality found that more than 40 percent of transgender Americans have attempted suicide—a staggering rate compared to the less than 2 percent of the population as a whole who’ve done so. Figuring out how to shape the law to provide equal citizenship to all members of the LGBT community is one of our nation’s greatest remaining social challenges.
Given the data, and our own commonsense understanding of the difficulties facing transgender children, it’s imperative that courts like the one in Maine see cases like Nicole Maines's for what they are: acts of discrimination no different from those that prohibited black people from entering white bathrooms until the 1960s. Even if we maintain our tradition of sex-specific bathrooms, we should swing open the bathroom stall doors to transgender people. Just as I feel the men’s room is the right place for me, Maines feels the women’s room is the right place for her. Denying her that accommodation does not merely inconvenience her. It treats her, in violation of our constitutional ideals, as unequal.