The Cross-dressing Case for Bathroom Equality

• Publication year: 2010

SEATTLE UNIVERSITY LAW REVIEWVolume 34, No. 1FALL 2010

The Cross-Dressing Case for Bathroom Equality

Jennifer Levi and Daniel Redman(fn*)

I. Introduction

It is a basic fact of biology that every person requires access to the bathroom. Today, for transgender people,(fn1) this right of access is often held hostage by thoughtless and uninformed authorities. As a result of bathroom discrimination, transgender people frequently suffer health problems and face violence or harassment. Bathroom inequality is one of the greatest barriers to full integration of transgender people in American life. And, even more, opponents of transgender-inclusive nondiscrimination laws have systematically embraced a strategy of leveraging the discomfort and fears people have around bathroom safety and privacy to foment opposition to transgender equality.

This Article offers a new set of arguments for transgender equality based on a little-known series of cases in which courts declined to enforce cross-dressing laws against transgender defendants. As shown below, the arguments brought by the defenders of these laws closely mirror the arguments brought today in favor of bathroom discrimination. In this Article, we put both the bathroom and cross-dressing debates in historical context, draw out the underlying reasoning in the two sets of cases, and argue that the reasoning that supports bathroom discrimination is as flawed as the reasoning behind criminal cross-dressing laws. The analysis also suggests that, just as the arguments for cross-dressing prohibitions have not withstood advances in public understanding of transgender people and their lives, neither will the arguments for bathroom discrimination.

In Part I, we discuss the current state of the law, present personal testimonials of transgender people denied bathroom access, place the bathroom debate in historical context, and show how that debate evolved to the present day. In Part II, we analyze the body of case law dealing with bathroom access and discrimination, outlining the types of arguments brought by anti-transgender advocates to justify withholding bathroom access: preventing fraud and crime, discouraging overt homosexuality, and enforcing gender norms. In Part III, we analyze the body of case law dealing with the cross-dressing laws, demonstrate that defendants used the same arguments being used today in the bathroom context, and show how the courts rejected these arguments. In Part IV, we compare the two bodies of case law and offer new arguments for bathroom-access equality.

II. Bathroom Equality: History of the Debate

A. Contemporary Situation

The past two decades have brought many advances in equal rights for transgender individuals. Beginning in the early 1990s, the queer movement began to advocate inclusive nondiscrimination protections that would include gender identity and expression as protected characteristics. In 1993, Minnesota became the first state to add language to its state nondiscrimination law to ensure that transgender people would be protected.(fn2) The second state to do so was Rhode Island in 2001.(fn3) Today, thirteen states and the District of Columbia prohibit discrimination based on gender identity,(fn4) and a number of other states continue to pursue comparable laws.(fn5) In addition, cities across the country have added gender identity and expression to municipal nondiscrimination ordin-ances.(fn6)

That said, transgender people-much like gay, lesbian, and bisexual people-still lack nondiscrimination protections under both federal and most states' laws in employment, housing, and public accommodations. This lack of protection is particularly apparent in the issue of bathroom access. Federal regulations require that all employers provide access to restrooms,(fn7) yet the dearth of federal gender-nondiscrimination protection permits employers to discriminate as to who can use which bathroom. In states without transgender-inclusive nondiscrimination laws, it is not uncommon for a transgender person to be forced to use a bathroom that is inconsistent with his or her gender identity-an experience this Article refers to as bathroom discrimination.(fn8) This treatment constitutes discrimination because it ignores the real and central element of a transgender person's identity-his or her gender identity-while respecting the gender identity of persons who are not transgender.

Even in states and cities with transgender-inclusive nondiscrimina-tion laws, transgender people face significant barriers to equal bathroom access. In a 2002 survey conducted by the San Francisco Human Rights Commission, nearly 50% of transgender respondents reported harassment or assault in a public bathroom, notwithstanding California's trans-gender-inclusive legal protections. Because of this, the report concluded, "[M]any transgender people avoid public bathrooms altogether and can develop health problems as a result."(fn9) One respondent wrote:I have spent so many hours avoiding public multi-stall bathrooms that I have damaged my bladder and put pressure on my kidneys. The problem was a daily one. I'd think about where I was going, what bathrooms I'd have access to, how much I drank during the day, whether I'd be with people who could help stand guard . . . .(fn10)

Transgender people are forced out of employment and school because they are denied access to bathrooms. In Goins v. West, a trans-gender plaintiff in a civil rights lawsuit argued that she faced constructive termination because her employer refused to allow her to use the women's restroom.(fn11) Among other types of discrimination that trans-gender youth face, bathroom-based discrimination is one of the top forces pushing them to drop out of school.(fn12)

Bathroom discrimination is real and terrifying. Leslie Feinberg, a transgender activist and author, writes:We live under the constant threat of horrifying violence. We have to worry about what bathroom to use when our bladders are aching. We are forced to consider whether we'll be dragged out of a bathroom and arrested or face a fistfight while our bladders are still aching . . . . Human beings must use toilets.(fn13)

Feinberg describes the violence that transgender people face in the bathroom: "If I go into the women's bathroom, am I prepared for the shouting and shaming? Will someone call security or the cops? If I use the men's room, am I willing to fight my way out? Am I really ready for the violence that could ensue?"(fn14)

The harassment and violence from civilians is bad, but police brutality is often much worse.[P]olice officers often harass or abuse transgender and gender non-conforming people regardless of which sex-segregated bathroom they use. This harassment intensifies when coupled with the stereotyping of trans people as sexual predators. As such, the use of the 'wrong' bathroom . . . often results in arrests for crimes such as public lewdness, public obscenity, or public indecency. Refusing to comply with or simply questioning a police officer's direction as to which bathroom the individual must use can often lead to charges such as resisting arrest or disorderly conduct.(fn15) While the situation is unacceptable today, in the past it was much worse. One guidebook for transgender people published in 1995 advised trans-gender people "to carry with [them] at all times a psychologist's letter . . . ."-like a passport in hostile territory-in case they were stopped by police.(fn16) According to Amnesty International, "Bathroom access issues become more of an issue with intersecting identities-people of color, homeless and young people are already under higher scrutiny."(fn17)

Activists have already organized significantly around this issue. At the University of California-Santa Barbara, a team of students, staff, and community members founded an organization called People In Search of Safe and Accessible Restrooms ("PISSAR") to lobby the school to make bathrooms safe and accessible for transgender and disabled people.(fn18) They were motivated by the fact that "[f]or those of us whose appearance or identity does not quite match the 'man' or 'woman' signs on the door, bathrooms can be the sites of violence and harassment, making it very difficult for us to use them safely or comfortably."(fn19) Activists have even set up a website, Safe2Pee.org, to "create a resource where people who do not feel comfortable with traditional public re-strooms can find safe alternatives."(fn20)

B. Bathroom Discrimination Reflects Broader Animus

Restricting the ability to use bathrooms has long served as yet another way to marginalize minority and disempowered groups. As C.J. Griffin writes, discriminatory bathroom rules are "a tool of oppression used against many individuals and communities."(fn21) As Griffin points out, "[T]he lack of bathroom facilities has been an excuse to keep women out of areas traditionally dominated by men. For example, history suggests that women were only allowed into Yale Medical School after a female applicant's wealthy father donated money to build a women's restroom."(fn22) As for race, the South's notorious Jim Crow laws were designed to ensure white hegemony as much as to prescribe social norms. "Racially-segregated facilities taught both whites and blacks that certain kinds of contacts were forbidden because whites would be degraded by the contact with the blacks . . . . [Often] in the workplace, blacks had to...