Judith Shulevitz, who writes regularly for The New York Times, penned an essay last weekend entitled, "Is it time to desegregate the sexes?" From the title alone, one would be forgiven if she believed that this essay would be perceived as very supportive by the trans community. Alas, that wasn't the case.
Shulevitz quickly shifts from the bathroom wars, exemplified by the passage to North Carolina's notorious HB2 legislation which has engendered a federal lawsuit and a multi-business boycott of the state, to the more controversial question of locker rooms. Bathrooms all have stalls, and men's rooms have codes of conduct for the urinals that preclude any serious problems arising. Trans use of the appropriate bathroom, therefore, should never have been problematic politically. Once marriage equality passed, however, and the reactionary Christianist political community needed a new target, they naturally gravitated to the bathroom, the locus of all American civil rights movement backlashes.
Unfortunately for them, they awakened a previously ignorant public which, for the most part, can't believe the fear and paranoia swirling around the bathroom issue, and taking it national has backfired. We will see what the Supreme Court will do, if anything, but so far the federal courts have been very supportive, with very few lower level exceptions. Just this week a court in Illinois wrote, in the words of U.S. Magistrate Judge Jeffrey Gilbert, that high school students "do not have a constitutional right not to share restrooms or locker rooms with transgender students whose sex assigned at birth is different than theirs."
Nudity and semi-nudity are often an issue in locker rooms. It was this issue of public exposure that has always been behind the bathroom panic, as long ago as the ENDA War of 2007, but until recently bathrooms still symbolically represented the crux of the issue. It's fair to say that there's been enough education that that is no longer the case, and, hence, Shulevitz's focus on locker rooms.
She posits the problem this way:
Locker rooms are open, at least in older schools built on the assumption that students of the same sex would un-self-consciously disrobe. In these spaces, bodies stand revealed to other bodies.
Of course, it's always been a myth that students of the same sex would un-self-consciously disrobe in public. That was the case long before gay issues came to the fore, when one could at least begin to consider the presence of sexual tension in single-sex locker rooms. Having spent decades in both, and having once been an adolescent, I remember very few boys or girls who were comfortable getting naked, and most tried to minimize their exposure.
Shulevitz poses the question of a cis and a trans girl in a locker room, and asks:
The standoff will end only when one retreats to a stall to change in private. Which one will it be?
Therein lies the solution, already in place around the country, to which I will return later.
She then gets distracted by delving into the currently accepted but incorrect understanding of "sex," resorting to euphemisms for penis and vagina and accepting without challenge that a penis is part of one's anatomy while the brain isn't. Just as we've learned that categorizing a host of brain disorders as "mental illnesses" leads to unwanted stigma, we need to apply that growing understanding to human sex as well. Being trans is not about how you feel, as if feelings are minor inconveniences which can be easily changed. Being trans is intrinsic to your being because your brain makes it so.
She describes both sides of the debate now playing out in multiple federal courts, and states: "We have to ask whether physical modesty is tantamount to racism or has a more legitimate basis."
That description of the dilemma caused several trans advocates to go ballistic and call her transphobic. I found the response overblown and counterproductive, for if you can't listen to both sides, however odious one side's beliefs may be, and engage them, you will not only not win in court, you won't change the opinions of the public where progress is steadily being made. More needs to be done, but if we try to win by means of belligerent assertion we will be doing ourselves no favors.
Shulevitz continued by describing the current Title IX protections available to students and the backlash being generated by the religious right. She quoted Professor Jeannie Suk of Harvard whom I've discussed previously as saying, regarding a conflict between the cisgender and transgender girl:
"The federal government is putting schools in a position where they may be sued whichever route they choose." And so they have been.
One of the cases she discussed is the Palatine case I mentioned above. She went on to say, further infuriating some trans activists, that:
Religious pluralism requires accommodation of the demure as well as the less inhibited.
Finally, she discusses the lawsuit of the Women's Liberation Front, a group of trans exclusionary lesbian feminists who've wanted to eradicated trans women for the past 40 years. They, like their religious counterparts, bring up the red herring of sexually predatory boys, and Shulevitz quotes their lawyers in a relatively unflattering manner.
After discussing the fact that the federal government is now promoting the medical consensus that trans women are women and trans men are men, she presents two solutions:
1) To removing sex segregation in general as many colleges and universities are already doing, and which seems to be the organic path to a solution, or
2) Redesign our communal facilities with lockable changing rooms.
She then states that: "Perhaps we should trust our educators to exercise their own judgment."
Unfortunately, she then goes on to quote an amicus where a group of educators demand not to be told by the feds how to do their business. The fact is that the Department of Education was asked to produce guidance for several school districts, and did so, based on the evolving legal understanding. They weren't imposing anything. The local authorities are free to craft a solution within the bounds of the law.
Where she makes a major mistake, beyond presenting the opposition's positions without providing background to show the reader the hate and fear that underlie those positions, is when she concludes with:
A revolution of this magnitude should go through the democratic process of lawmaking, which would force legislators to entertain multiple perspectives.
In the late stages of the Obama administration, however, some federal agencies have been sidestepping Congress by quietly redefining existing law. That's similar to what the O.C.R. did, too. That was a mistake. At the very least, the agencies should have admitted that they were introducing a new rule, not a mere clarification, which would have led to a procedure for inviting public comment.
The federal government is just doing its job, and, for the past six years, as we all know, Congress has not. Civil rights should not be put to a vote, and there is no reason to ignore the overwhelming medical and now legal consensus on what sex is.
She ends by saying:
But democracy is slow. It is also inclusive, and more likely to produce the kinds of compromises that might forestall a backlash.
Here are the facts -- compromises have been worked out for the past several decades. Trans women and men have been using the appropriate locker and bath rooms for many years. The changes in policy have often by spurred by a single trans individual, leading HR to craft new policies which have been inserted in their HR manuals. I've been teaching them how to do that for years, as have many others. This is no revolution.
The answer, for all our students, hinges on two fundamental points. The first is that, as Magistrate Judge Gilbert said, there is no constitutional right to having your feelings imposed on others. If your feelings are hurt by being in the presence of a trans girl with a penis, then seek accommodation. It will be made available. Feelings don't trump civil rights, and your right to privacy can be easily accommodated. Religious pluralism does not require accommodation of the demure. For example, Muslim women may cover their heads, but may not demand the same of others, or the right not to be exposed to others' bodies.
Secondly, the solution which is increasingly being used is to provide additional privacy to all students, cis as well as trans. Children and adolescents want more privacy, not less, and if it costs more to redesign communal facilities, so be it. It will create jobs, too.
The backlash Shulevitz mentions is purely a political one, generated to support various Republican candidates during the primaries, and which has, surprisingly, not be heard from during the general election campaign. The compromises occur daily on the most local of levels; let's get the national politicians out of it.
There's nothing transphobic in presenting a reasoned discussion of a controversial public issue. We've wanted such debates for a long time, but now that we're getting them we're lashing out in rage. I'm glad The Times published Burkett last year, because it led to much discussion and she and I even appeared together to civilly discuss the issue. We both learned from the experience.
I'll go so far as to say that a person who respectfully disagrees with me on this is not, by definition, transphobic. I can attempt to persuade the rational person with reason. I think we should all take that opportunity, and not catastrophize, repeating (and exaggerating) the suicide rate and the decades-long endemic violence against African American women of color, believing that's going to convince people to side with us.
I do agree with the critics that The New York Times, in addition to their wonderful series on trans persons, the promotion of the trans military documentary, improved reporting and wonderfully supportive editorializing, should engage some long-form essays from trans persons on this important issue. If your writers aren't going to present both sides equally, then the other side should be given equal time and space. You can do better in spite of your recent support.
Finally, Shulevitz quotes Professor Adler of Case Western in her closing, saying that all this will probably turn out to be moot because the millennial generation will make it moot.
The kids will eventually make it right.