The Washington Post has a recent story about a transgender boy, Max Brennan, who has sued his school seeking access not only to the boys' bathroom but also the boys' locker room. Last year, in a case brought by high school student Gavin Grimm, the Supreme Court was to take up the issue of transgender bathroom access, with Grimm specifically stating that he was not seeking locker room access. That case was dismissed, but since then, the Seventh Circuit upheld a transgender boy's right to use the boys' bathroom at his school. Relying on that Seventh Circuit case, a district court judge has allowed Brennan to proceed with his suit. Notwithstanding some initial success, I don't believe LGBT advocates have made a persuasive, or even coherent, argument that prohibitions against sex discrimination require transgender bathroom access. Nevertheless that does not mean that there are not compelling equitable arguments, and those are the focus of this post.
The issue of transgender access to single-sex facilities is generally understood as requiring that the rights of transgender individuals be balanced against the bodily privacy rights of non-transgender users. In opposing the petition for certiorari to the Supreme Court, Grimm pointed out that the presence of a fully clothed transgender man in the women's bathroom may be more discomfiting than the presence of a transgender man in the men's room. Although Grimm suggested that bodily privacy interests may be based on genitalia when it comes to accessing lockers rooms but not bathrooms, this view strikes me as mistaken. A transgender woman using the women's bathroom may raise fewer eyebrows than a transgender woman using the men's bathroom, but that's not because bathroom privacy interests are necessarily unrelated to genitalia. It merely reflects that we assume that someone who looks like a woman while she is clothed should use the women's restroom. We obviously can't inspect people's genitals before they use a bathroom, so it makes sense to align bathroom usage with gender presentation. In a workplace, this may be more of an issue because, unlike with users of a bathroom in a sports arena, for instance, employees are much more likely to know that a coworker is transgender. Nevertheless, even assuming bodily privacy interests are tied to genitalia, most public bathroom users don't expose their genitals to other users, so aligning bathroom usage with gender identity seems like the best approach.
In the context of locker rooms and other facilities in which users can be seen unclothed, it's much less clear that bodily privacy interests can be minimized sufficiently to avoid the issue of genitalia. If we see a person dressed like a woman entering the women's bathroom, we are likely to assume that she is a woman, but if we see an unclothed person in the women's locker room, and she has a penis, we are much less likely to assume she is a woman. A while back, I wrote a short post about a colleague of mine who was using the women's locker room at a fitness center when she saw an unclothed transgender woman and, assuming the member was male, told the member she was in the wrong locker room. Of course, even if a transgender woman using a women's locker room has a penis, she still might be recognized by non-transgender users as a woman.
Even if individuals may have bodily privacy interests that should be respected, it's important to recognize that expectations about bodily privacy are a product of social custom and largely arbitrary. In the United States, for instance, topless female sunbathers are not welcome at most beaches but would be welcome at many European beaches. And I was amused when I visited a science museum in Amsterdam and viewed an exhibit geared at teenage workers that used stick figures to illustrate sexual positions and that had an interactive display to demonstrate French kissing.
Socially constructed privacy expectations presumably arose when there was no recognition of the interests of transgender individuals. Privacy expectations that are grounded in the assumption that an individual with a penis perceives himself as male may not be transferable to circumstances when sexual anatomy and gender identity are not aligned.
Even without regard to transgender individuals, it's clear that genitalia are not necessarily the best measure of whether someone should be deemed male or female for purposes of bodily privacy interests. An obvious example is a biologically male individual who has lost his genitalia, such as through a combat injury. Such an individual obviously has not somehow become female through the loss of his male genitalia. Likewise, it seems to make little sense to believe that a transgender woman should use the male locker room before she undergoes gender reassignment surgery and then the women's locker room afterwards.
Given that privacy expectations are purely the product of social construction and that transgender rights are a new issue, we may do better not to rely on assumptions that don't fit these new circumstances. If we do so, then we can be free to evaluate the issue of transgender access from the perspective of fairness, and from that perspective, I think it follows that we should allow transgender access to single-sex facilities based on gender identity, not genitalia.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.