Fifteen years ago, identical twin boys were born. By the age of three, however, one of the two children began strongly identifying as a girl, while the other continued to experience himself as male. As time went on, the differing gender identifications persisted, and by the third grade, in the words of a school counselor, the one who identified as a girl “pretty much live[d] completely as a female.”
In the third and fourth grades, with the support of her school’s staff, the female-identified sibling used the girls’ restroom and otherwise socialized and participated in school activities as a girl. She also received a diagnosis of “gender dysphoria,” which refers to the psychological distress that accompanies an assigned sex at birth that differs from one’s own gender identity.
The girl (given the pseudonym “Susan Doe” in court) used the girls’ restroom at school without event until, at the beginning of the fifth grade, a male student—at the instigation of his grandfather—followed Susan into the restroom. The grandfather apparently told his grandson that Susan was a boy and should not be allowed to use the girls’ restroom. To make his point, the grandfather directed his grandson to use the girls’ restroom as long as Susan used it. The school, the Asa Adams Elementary School in Orono, subsequently required Susan to use a separate, staff-only restroom that no other students used, though there had been no other complaints about her use of the girls’ bathroom.
Thereafter, Susan’s parents, each acting as Susan’s next friend (a kind of third-party litigant), brought a complaint to the Maine Human Rights Commission (MHRC), alleging violations of the Maine Human Rights Act (MHRA). After the MHRC found reasonable grounds for the parents’ complaint, the Commission and the parents went on to file suit against the Orono School Department Superintendent and other school district entities, alleging (among other things) that excluding Susan Doe from the girls’ restroom constituted discrimination on the basis of sexual orientation. The plaintiffs later amended their complaint to include the fact of Susan’s continuing exclusion from the female restroom in sixth grade, at Orono Middle School. The defendants prevailed in a motion for summary judgment, and the appeal from that motion has now been argued before the highest court of Maine. In this column, I will consider the merits of the plaintiffs’ case.
The Defense Position
In defense of Susan Doe’s exclusion from the girls’ restroom, one might argue that there is no discrimination at all going on here. Maine law authorizes separate restrooms for males and females. Susan is anatomically male. Therefore, one might contend that by asking to be admitted to the girls’ restroom, Susan is asking for an exemption from the school policy of separating girls and boys in the restrooms. The current rule, in other words, arguably treats all anatomically female students equally, and all anatomically male students equally, in denying access to the opposite-anatomical sex bathroom. Requesting an exemption, on this theory, is accordingly a plea for a special accommodation, rather than a plea to be free of discrimination. To put it in terms articulated by the grandfather who complained about Susan’s use of the girls’ bathroom, if it is fair and non-discriminatory to keep the man’s grandson out of the girls’ bathroom, then it is equally fair and nondiscriminatory to keep Susan out as well. It turns out that there are a number of problems with that claim, as follows:
Problem 1: the Staff Restroom is Not the Boys’ Bathroom
There are a number of problems with this argument for exclusion. First, the school has admitted that “it was not possible for her [Susan] to use the boys’ shared restroom and therefore the school never considered that to be an option.” The school counselor said that “[i]t wasn’t feasible for [Susan] to use the boys’ [room]—we would never—that was never a consideration . . . in the entire time that she was there.”
The school instead required Susan to use the staff restroom rather than either the girls’ or the boys’ bathroom. It is therefore literally false to suggest that the school treated Susan no differently from the other anatomically male children. It did treat her differently and thus forfeited the formal-equality argument that says that so long as all anatomical males are treated the same way, there cannot be discrimination. As Susan’s parents have also alleged, moreover, the school has effectively segregated Susan from all of her classmates, both male and female, for being a transgender student, a far cry from equal treatment, and an additional violation of the MHRA.
Problem 2: The Inadequacy of Transgender-Blind Formal “Equality”
Of course, Susan does not want access to the boys’ bathroom, so her grievance is not really with her exclusion from there. The second and more significant problem with the “equality” argument is the fact that treating Susan just like the other “anatomical boys” would in fact provide her with no equality at all. Boys who identify with the gender that matches their anatomical sex think of themselves as boys, not as “anatomical boys,” and the converse is true for girls who identify with the gender that matches their anatomical sex. To treat Susan as though she is a boy therefore compels her—and her alone—to behave in a manner that defies the gender with which she identifies.
The problem here recalls the challenge that gay people have faced in arguing against opponents of same-sex marriage. Opponents say that there is no discrimination, because everyone is permitted to marry someone of the opposite sex. For a gay person, however, the opportunity to marry someone of the opposite sex is completely unappealing and thus represents no opportunity at all, any more than, say, the opportunity to utter a Christian prayer would offer an “equal” opportunity to a non-Christian who wished to offer a Hindu prayer (or to offer no prayer at all).
Gay people have convincingly responded to opponents of gay marriage that just as heterosexuals have the legal right to marry a partner of their choice, gay people should also have the corresponding right to marry a partner of their choice. Opponents of gay marriage have thus defined the right in question at the wrong level of generality, a fact that is plain when we discuss other sorts of marriage limitations (such as a right to marry “anyone of the same race,” “anyone of the same religion,” or “anyone of the same social class,” none of which rights could plausibly be characterized as truly egalitarian).
Like a gay person whose anatomical or assigned sex differs from a legally assigned opposite-sex attraction, the transgender female’s assigned or anatomical sex differs from her own sense of herself as female. We can appreciate this by imagining going to the doctor and learning that our own chromosomal sex is the opposite of our assigned sex. Imagine, if you are a woman, going to the doctor and finding out that you have an XY chromosome. If you are not a transgender person, then you would likely find this news quite distressing. This is at least in part because you have a gender identity, and that identity would remain in place even if you found out that you were mistaken about your chromosomal sex. You could not easily start thinking of yourself as a man simply because you found out that your chromosomes are XY. Like a transgender person, you have a gender identity whose existence is separable from your assigned sex at birth.
For Susan Doe, likewise, her gender identity is female. The fact that her assigned sex was male at birth, or the fact that she has an anatomy that matches the male anatomy, does not change that. To exclude her from the girls’ bathroom is therefore to discriminate against her, as a female-gendered student, relative to all of the other female-gendered students at the school. It is also to deny her the camaraderie of her other female-gendered peers and to subject her to the bullying that foreseeably results from such official exclusion.
In thinking about Susan’s case, it may be useful to note that most of our interactions with people in the course of a given day, when sex is relevant, are driven entirely by gender, rather than by anatomical or assigned sex. If you want to talk to a woman, for example, you do not ask the person in question to expose her genitals, or to give you proof that she has XX chromosomes. You simply approach a person whose gender identity is expressed as female, and you likely don’t give a moment’s thought to what her genitalia were at birth. In reality, when we interact with one another in ways that treat men and women disparately, we almost always do so on the basis of expressed gender identity, rather than on the basis of anatomical or assigned sex.
Are Separate Restrooms Themselves a Form of Sex Discrimination?
An MHRC regulation provides that “[a]n educational institution may provide separate toilet . . . facilities on the basis of sex.” Providing separate restrooms for girls and for boys, however, is arguably an important reason for Susan Doe’s predicament. If there were one bathroom for all students, then Susan wouldn’t have to persuade anyone that she is a girl in order to the use the bathroom, and her school would not be in a position to adjudicate who gets to qualify as a girl for purposes of using the girls’ restroom.
There are arguably legitimate, non-invidious reasons for separating males from females in the restroom. The primary reason has to do with safety, security, and a concern about gender-motivated violence. In any enclosed location where people remove clothing, some will understandably be wary of mixing the genders. On the other hand, there are alternative ways of ensuring security besides having separate bathrooms—stall dividers could go from floor to ceiling, and effective locks could be installed, for example. I spent a year in a dormitory with a unisex restroom, and I don’t recall anything remarkable happening that year (other than there never being a line to use the restroom).
One nonetheless could argue—and some have argued—that separate restrooms represent an improper form of sex discrimination. Yet I do not think it is necessary to Susan’s case that anyone find this argument persuasive. The key point for Susan’s case is that there was never any reason to expect that Susan would herself pose a danger to any of the other female-gendered students who use the restroom at her school.
Notably, it was the grandfather of a male student who complained about Susan using the girls’ bathroom. It is difficult to imagine how Susan’s use of the girls’ bathroom would threaten a boy who is not only anatomically male but identifies as a boy, and thus in no way qualifies to use a restroom reserved for females. Tellingly, the boy is reported to have “c[o]me into the bathroom one day and called [Susan] a ‘faggot,’” a powerful rejoinder for anyone who might have doubted that Susan was the victim of discrimination on account of her sexual orientation.
Fine-Tuning What We Mean When We Say “Female”
Some pairs of attributes tend to go together so that we rarely have occasion to question their coincidence. One example is pregnancy and genetic motherhood, a topic that I addressed in detail here. Another is assigned-sex-at-birth and gender. Most people who are born with a male anatomy come to think of themselves as male throughout their lives (even if they cultivate one or more stereotypically “feminine” characteristics), and most people who are born with a female anatomy likewise come to think of themselves as female. A third example is sex and gay/straight sexual orientation: Most people who are gendered male are sexually attracted to females, and vice-versa.
An anti-discrimination norm, however, demands that we take into account the lives of those who fall outside the category of “most people.” While “most people” in the United States are Christian, not everyone is, and it would be wrong to require everyone to be a Christian, or to ignore the needs of those who are not, under the guise of extending to everyone the “right to be a Christian.” It is invidious as well to pretend that everyone who is born anatomically male will properly identify as male and should thus be excluded from female-only venues, just as it is oppressive to pretend that everyone is heterosexual, or to pretend that a woman must necessarily contribute DNA and carry a pregnancy to qualify as a biological mother.
As time goes on, we can all learn more about the lives of those whom we previously ignored, and whose freedom and dignity we previously curtailed, out of a misguided fidelity to rigid categories. I hope that the Maine Supreme Court is able to learn about the lives of transgender people like Susan Doe, so that it may realize that Susan is just as much the victim of sexual- orientation discrimination as, for instance, the gay man who, until very recently, would have been lawfully excluded from the military because people did not think he should be allowed to shower with the heterosexual men. Challenging stereotypes about the proper content of the categories “male” and “female” is a vital function of a legal system that is authentically committed to gender equality and justice.