We need to balance the rights of everyone. Uh, sure. But not that way.
We hear this statement – we need to balance everyone’s rights – when someone’s rights are being denied.
Ancient Roman latrines / latrinae, Ostia Antica. There is considerable scholarly debate as to whether these roman latrines were gender-segregated. Toilets are a controversial subject!
In Colorado, we have a pretty awesome Division of Civil Rights. They recently ruled (PDF via Transgender Legal Defense and Education Fund) that Coy Mathis, now a second grader, has the right to use a bathroom that matches her gender identity (she is a trans girl). While Coy has left the discriminatory district and is planning to attend school in another city (a wise decision, as retaliation if subtle can be hard to prove), this decision will help many other people in a very practical way – the right to go to the bathroom.
One of the arguments we heard during the debate from the discriminatory district was that this was a “complicated situation” (that means “I don’t really want to discuss this publicly or have it questioned – it’s too complicated for simple public discourse, after all…”) and that the district couldn’t extend special rights to one student (or a small number of students) at the expense of the majority. Of course the special rights tactic isn’t new, particularly from that area of Colorado, as it gained great prominence in the Colorado Amendment 2 battle (the formal title of Amendment 2 was “Colorado No Protected Status for Sexual Orientation Amendment, Initiative 2”). There were three reasons given to the general public at large for the need to pass Amendment 2:
- Passage will provide for the safety and well-being of children (that is, allowing non-discrimination ordinances to exist would be bad for children because then they’ll hear that gays are equal and are supposed to be treated well, which, apparently, will make more kids gay).
- Gays are making a lifestyle choice, which shouldn’t be protected in the same way things that are not choices should be protected. We shouldn’t “protect sin.”
- Gays are a very small minority, so nothing is wrong when a majority of people believe something is wrong and vote to codify their moral beliefs in law, even if it affects that minority. They are outnumbered. Special rights for gays that YOU don’t get.
Of course most people know that being gay isn’t a lifestyle choice. So I’m not even going to dignify that with an argument.
As for harm to Children, that was prominent part of the Amendment 2 TV advertising. For example, one anti-gay ad (click to watch) used the following voice-over, “School kids are taught this lifestyle is healthy and normal. By law. Do we want to protect our children? Yes we do! Vote yes on 2!” The implication is that children will be infected by gay, I guess. There is of course children on the other side of the issue – as Judge Kennedy wrote, when striking down part of the Defense of Marriage Act, anti-gay laws serve to “[humiliate] tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” So that leaves us with the third point. I’ll address this along with the next argument.
The third argument in favor of Amendment 2 was the argument that the majority trumps the minority has been used forever. Essentially the majority will claim, “If we recognize rights for the minority, we’ll lose rights. And it’s not right that the majority loses rights.” It was special rights for gays.
(note that I’m not equating gays and trans people – but the issue is the same, just as the historical opposition to desegregation is similar to the opposition today against LGBT people).
And that’s where we are today. The idea is that somehow the rights of the majority are violated when a trans child uses a bathroom aligned with the child’s gender identity. Sometimes you’ll hear the same Amendment 2 style safety concern, or a slightly different one along the lines of “They are going to let perverts into your girl’s bathroom.” The “special” right of being able to use a bathroom that matches your gender when you need to urinate doesn’t apply to trans people. After all, we have to think of the right to be safe while using the bathroom.
That’s where the argument is today – there are two parts to the argument that allowing a 2nd grade transgirl to use the girl’s room is dangerous and thus a violation of more people’s rights than prohibiting her use of the bathroom would be:
- Women, girls, and, to a lesser extent, boys have the right to be safe from others
- Trans people are dangerous
Few people would disagree that people using the toilet have a right to be safe – just as during Amendment 2 in Colorado, few people were opposed to protecting children – the disagreement was whether or not being able to fire gay people in Boulder, CO for being gay had anything to do with protecting children. Of course what is lost in this argument is that trans people also have the right to be safe – both psychologically and physically.
There are few if any (I know of none) incidents of a trans person using a bathroom and then assaulting a woman or child in that bathroom. There sadly are many incidents of trans people being beaten, kicked, insulted, humiliated, and threatened for using a bathroom – and this is true no matter which bathroom they use. But balancing the rights of Coy Mathis and the other students, in the eyes of some, means segregating Coy from other girls because Coy is the problem. If she can use the bathroom, that would be the same as letting a man use the bathroom. It would be dangerous. Yet the evidence says otherwise.
The next response is, “Well, Coy is essentially third gendered.” No, she’s not. She’s a girl. She doesn’t identify as “neither boy or girl.” She identifies as girl. There are people who don’t see themselves as either man or woman, but a different category – and this of course needs to be respected. But in Coy’s case, she sees herself – as do her parents, doctors, and most of her teachers (but not district administration) – as a girl. She’s not third gendered. Using a staff bathroom (ironically they were single stalled, but still signed “men” or “women” – they were still gender segregated) would be stigmatizing to anyone. Do you not think kids would notice and then tease someone who used a different bathroom? Who was using a bathroom kids normally are prohibited from using?
Now, I believe in having private bathroom options for all people. Certainly some trans people will use them. So will some people that reject binary gender. And so will plenty of non-trans people who need extra privacy for whatever reason. But it must be a choice, not forced, to remain free from stigmatization.
The right of Coy should be considered. She has the right to be a girl. Colorado law, fortunately, recognizes this. Someone else’s “right” to not feel uncomfortable does not trump Coy’s rights. No matter how numerous the uncomfortable people may be. Besides, there’s an easy solution for people who don’t feel comfortable sharing the bathroom with someone else: use the single-stall bathrooms! Coy isn’t the problem (statistically, it’s clear she’s not likely to harm others). Perhaps it’s a good time to think about bathroom safety for all, since too many children are assaulted in bathrooms (by people who are not trans).
We also have good law already for someone who will violate someone else in the restroom. The gender of the attacker isn’t the critical issue. The act itself is. And the law does recognize that certain acts shouldn’t happen in the bathroom. For example, despite Boulder, Colorado having laws that prohibit discrimination on the basis of gender identity and expression, their porta-potty peeper was rightfully brought to justice.
There is no need to “balance” the rights of bigots with Coy. The bigots are of course free to grumble and protest, but they aren’t free to discriminate, whether it’s Coy or a black student or a muslim student. Their bigotry is not solved by discriminating against the object of their hate.
So, in summary, it is possible to balance the rights of the people who will be uncomfortable and the rights of Coy. Let the people uncomfortable sharing bathrooms use private facilities. Those of us who are fine with someone else urinating in another stall can then get on with our lives – and you don’t harm or segregate an innocent girl in the process. She isn’t responsible for someone else’s bigotry or discomfort.