Transgender Rights and Public Bathrooms

Fear is often used to push public policy. Sometimes it is warranted, sometimes it is not. In the case of a transgender person's access to public bathrooms, I do not think there is reason for alarm.

The Declaration of Independence states: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Accordingly, the Fourteenth Amendment to the U.S. Constitution has an "Equal Protection Clause" to it.

A More Perfect Union

For this reason, because of who we are as a nation, in our society, strides in civil rights are made all of the time. From women's right to vote, to school bussing, to a woman's right to choose, and recently marriage equality, each of these steps we have made we have made because our understanding of civil rights has been advanced in our society.

One of the reasons that we progress as a society towards a more perfect union where all the men and women are treated equally is that we come to understand more about who we are. Researchers examine controversial topics to find out what fact is and what fiction is. Politicians then often use these milestones in research to better inform our understanding in order to advance social policy and improve civil rights. One such example is with transgender persons.

Sex is what it is to be biologically born male or female, whereas gender is psychologically male or female. Gender identity is "a person's gender-related identity, appearance or behavior...sincerely held as part of a person's core identity; provided, however, that gender-related identity shall not be asserted for any improper purpose." It follows that if gender is part of someone's core identity it is a protected right. If someone identifies as a male, then it is his right to use a male bathroom. If someone identifies as a female, then it is her right to use a female bathroom.

Rebuttals to Arguments Against Transgender Public Accommodations

Privacy -- There is the argument that non-transgender persons have the right to privacy and safety while in the bathroom. That is true, they do and that has not changed in the 17 states, Washington D.C., and more than 200 cities and towns have passed non-discrimination laws protecting gender identity in public spaces. A transgender person who uses the opposite sex bathroom in favor of using a bathroom consistent with his or her gender identity is using the bathroom for all of the same reasons as someone who is not transgender. No one's privacy or security is being infringed on. One person, regardless of sex is occupying a space for a specific purpose. No law is being broken.

Non-Transgender Persons' Comfort -- Under the transgender public accommodations laws, there is also the argument that a non-transgender person feels uncomfortable with a transgender person using the same bathroom. This is the same argument that was once made of people of color using public bathrooms, seating on public transportation, public drinking fountains and more. It is a lack of understanding at best, and hateful at worst.

Additionally, what about the comfort of a transgender child? What about the child who wants to use the bathroom that makes him or her feel comfortable with his or her gender identity? I know of one nine-year-old transgender girl living in my community named Ryan. This was a point that Ryan's mother made to me; she would like to see her nine-year-old daughter be able to use the bathroom that she is comfortable using.

Public Safety -- Under the transgender public accommodations laws, there is also the argument that a sex predator could dress up as a female to gain access to a female bathroom to prey on victims. First, they can already do this with or without this law. Second, that is a violation of the law, and not what the transgender public accommodation law is permitting. Third, we should not deny someone a right because others may abuse that right. Gun rights opponents claim that people who abuse guns should not be the reason to take away the right to bear arms. Supporters of welfare programs claim that people who abuse welfare should not be reason to take welfare away from law abiding users of welfare. What we need to do with people who abuse guns, welfare, or public accommodations such as bathrooms is to prosecute the people who abuse the law but not interfere with the rights of law abiding citizens.

Child Safety -- There is an argument that states "what if someone does seek to abuse that right, posing an outright danger to the public? All of these conflicts are magnified tenfold whenever children are involved."

First it is important to remember that someone who is abusing protections afforded under transgender public accommodation is a criminal. Second, the argument about child predators targeting transgender children tacitly fear mongers and ignores the manner in which pedophiles operate. A pedophile exploits a trusted relationship with a child the pedophile knows. They do not typically prey on children they meet in public spaces.

Discrimination Lawsuits -- There is the argument that the transgender public accommodation law would "allow for cross-gender bathroom usage and expensive 'discrimination' claims." That is if someone violates the law. Again, we should not deny one group of people rights because others may abuse the law. We don't do it with guns, welfare, voting, or any other area of public policy. We prosecute people who abuse the law. We don't deny someone civil rights because someone else may abuse the law.


It is important that all people feel equally protected under the law. Transgender persons should experience these protections, and non-transgender persons should not be victimized by anyone. No one should experience fear: fear of being victimized or denied rights because of a fear of what might happen if a third party violates the law. We don't deny one group of people a right because others may abuse the law that affords another group a right. It is for this reason that transgender public accommodations should be the law everywhere across America.

Paul Heroux is a State Representative from Massachusetts. He can be contacted at