Last month, the Office for Civil Rights of the U.S. Department of Education (“OCR”) informed an Illinois school district that it had violated anti-discrimination laws by barring a transgender girl (who plays on a girls’ sports team) from showering and changing in the girls’ locker room without restrictions. The school district currently expects the girl to change her clothes behind a special curtain, thereby separating her from the other girls on her team. Some parents and others have reacted negatively to OCR’s position, arguing that girls should have the right to privacy from having to see and be seen by a naked student with male anatomy. The conflict here raises an interesting question about who gets to define an individual’s gender or sexual identity.
Bathrooms Versus Locker Rooms
Some critics of the federal determination distinguish between requiring that girls share a bathroom with a transgender female student, on one hand, and requiring that they share showers and a changing area, on the other. In women’s restrooms, each bathroom contains separate stalls, which allow for visual privacy among the various occupants. Unlike a men’s room, which contains urinals into which men urinate in each other’s presence, the ladies’ room has built-in privacy protections.
Why should this matter? For someone who feels uncomfortable appearing nude or partially nude in front of people of the opposite sex, a unisex bathroom (or a women’s room that admits transgender women) will likely be felt as less of an intrusion upon the individual’s privacy than a mixed changing area or shower would. People might still prefer a completely sex-segregated bathroom (thus protecting them from cross-sex embarrassment due to sounds and smells associated with the restroom), but if the visual aspects of privacy are valued most, as seems likely, then some of those who oppose the shared shower or changing area would accept the more inclusive bathroom.
Changing rooms and showers involve full nudity in others’ presence. There is nowhere to hide in a room with open shower stalls and lockers. If an individual feels strongly that she does not want to be seen naked by someone she perceives as male, then she is out of luck and must either skip her shower or subject herself to what she might consider a privacy-violating exposure to a man. If privacy from visual observation (and from having to visually observe others) means anything, then the showering and changing area of a locker room seem like reasonable places for accommodation of such privacy needs.
Who Decides Who Is Male?
The problem, however, with accommodating uncomfortable girls or women by excluding the transgender female from the showering and changing area is that it seemingly acts neutrally but in fact takes sides. It comes down firmly in favor of the girls who consider the transgender girl to be a boy. We can see this clearly if we take an example from outside the realm of cis- and transgender individuals.
Imagine that a particular girl at a high school has not yet gone through puberty. Her chest is flat, she has no body hair, and she generally looks like a young girl—much younger than her actual age. Assume that she is either a very late bloomer or has some hormonal problem that is interfering with her reaching puberty. As a result, she looks very different from the other girls in her high school, and the other girls feel embarrassed to appear naked in front of “a child” (saying “it’s like undressing in front of a first-grader.”). They demand that the school arrange for her to have a separate shower and changing area so that they can appear only in front of “actual adolescents and women” rather than this child. Just as a five-year-old would not be invited to shower and change with the high school girls and women, similarly, they might argue, this girl should not be able to do so either.
My hope is that the school would condemn these reactions as highly insensitive and say that all of the girls are high school girls, including the one facing delayed puberty, and that whatever embarrassment they may feel, they must at the very least tolerate the equal participation of their less-developed classmate. We would probably feel a great deal of empathy for the one girl who has not developed, because she is likely to be stigmatized and to feel uncomfortable in front of a large group of girls who have already gone through puberty. Rather than accommodating the wish to exclude this girl, then, we might make it a point to talk (perhaps separately) with each of the girls complaining about having to shower and change in front of “a child” and explain that the girl could easily be experiencing their exclusionary conduct as bullying. Girls and women come in many different shapes and sizes, and we should not shame anyone—or exclude anyone—for falling outside of the “norm.” If anything, we might want to make a separate shower and changing area available for the girl if she wants it, because her own humiliation might be sufficient to justify a special arrangement.
If this example seems plain, then consider how similar the transgender girl’s situation is. If she is treated equally, she is walking into a changing and shower room where her body looks very different from the bodies of the other people among whom she must stand in the nude. What distinguishes her case from that of the underdeveloped hypothetical girl is that we have for so long defined “female” as a fixed category of individuals who conform to a definition, but that definition is now contested. Because that definition happens to include the underdeveloped girl, above, her right to shower and change with the others seems less controversial. But there are plenty of people who, despite their having been born into a male (or female) body, find that they identify as female (or male). This is what it means to be transgender, and to say that a transgender girl is “really a boy” is to trump a person’s own internal and subjective experience with the majority’s perceptions. Who are the girls in the school (or their parents or the principal) to tell a person who experiences the world as a female that she is actually a male (or worse, a freak who must shower and change in her own special place, because she truly belongs nowhere)?
Once we accept that each person gets to decide whether he or she is male or female, we will find that most people remain cis-gender (that is, identifying with the sex they were assigned at birth), so that there will not be a slippery slope into chaos where no one knows who goes into which restroom or locker room; living as cis-gender remains easier than being transgender even with the modest reduction in stigma that transgender people have begun to enjoy. The people in greatest need of accommodation are the transgender individuals and not their classmates who insist that they are being forced to change “in front of a boy”—schools accordingly ought to be more attentive to the needs of the former. Giving the transgender girl the autonomy to decide how to proceed may in some cases actually yield a request for a special changing area and shower stall anyway. In the Illinois case, the transgender girl has said she will probably use the special curtain to change, if given the choice, but she wants to be able to make the decision voluntarily rather than because the school district has ordered her to.
The truth is that many teenagers would prefer not to undress in front of anyone, including parents, doctors, and classmates. Girls in our culture learn to feel ashamed of their bodies, and one result is a desire for privacy. Focusing on how the transgender girl makes the other girls feel misses the larger story of how girls generally feel about having to disrobe in front of a large number of classmates or teammates. Forcing them to change publicly because it is traditional or somewhat less expensive is questionable and perhaps should be revisited. But the transgender girl, particularly alone and vulnerable to bullying and typical cruelty, should not have to bear the brunt of this.
I can easily imagine girls thinking, “I hate changing in front of all these girls, and now I have to change in front of a boy too!” The answer they should get is that maybe they should not have to change in front of “all these girls” in the first place and that the person they call a boy is in fact a girl whose wishes to be treated as a girl should be honored. A candid conversation about privacy more generally could help us all to see past the spurious issue of one transgender girl supposedly invading the privacy of a large group of girls whose privacy has already been tremendously compromised. With stalls and curtains for all, everyone in this lopsided battle could ultimately win.
Reading this brought back memories of the Russians who would give hormone shots to males so they could compete in women’s athletics. The Olympic committee introduced the chromosome 21 test. Chromosome 21 is the XX, XY or in the case of Down’s syndrome XXY which determines their sex. Using the example of a late bloomer is more about peer pressure than sex discrimination and is entirely irrelevant. Should a group of raucous young girls cause a normal teen male reaction to a bevy of nude female bodies could the transgender then claim sexual harassment because he really is female and causing his body to belie that belief is emotionally distressing? The only practical solution is individual restrooms and showers. It will be much cheaper than the ensuing lawsuits. Otherwise the courts will have to decide who can be discriminated against and who can’t. And that runs squarely into equal protection under the law.