When the Obama administration on May 13 sent a letter to nearly 100,000 public schools defending transgender rights, it elevated so-called “bathroom laws” to a national civil rights debate. How did we get here, and why?
Let's get this out of the way first: What does “transgender” mean?
As Americans debate the question of whether one’s gender identity or biological sex should determine bathroom usage, experts say it’s clear that many Americans can’t quite get their heads around what being transgender really means. That may partly be because only about 3 out of every 10 Americans know one of America’s estimated 700,000 transgender people. Though that’s up from less than 1 in 10 just a few years earlier, it’s still not a lot.
Arguably the best definition of gender identity comes from the Equal Employment Opportunity Commission, which has ruled that Title VII of the 1964 Civil Rights Act, which covers employment discrimination, mandates that gender “encompasses not only a person’s biological sex but also the cultural and social aspects associated with masculinity and femininity.”
In other words, gender isn’t necessarily set in stone. If that’s true, as the Obama administration contends, then it’s discriminatory to single out transgender individuals. In April, the 4th Circuit Court of Appeals agreed, ruling that public schools must allow transgender students to use the bathroom that matches their gender identity. It was the first ruling of its kind, reversing a lower court’s decision.
Why are we as a country even talking about this?
The Obama administration has made the civil rights of lesbian, gay, bisexual, and transgender citizens a priority since reversing the military’s “don’t ask, don’t tell” policy in 2009. In 2014, former Attorney General Eric Holder wrote a memo extending Title VII’s prohibition against discrimination based on sex to include gender identity. That instruction reversed the Justice Department’s previous policy, which had been set under the Bush administration.
The first stirrings of a fight came last April, when Executive Order 11246 was revised. President Obama expanded employment discrimination protections to transgender people who work for companies that do business with the federal government. More than 200 municipalities and two dozen states also had passed ordinances protecting the rights of transgender people, including the right to use the bathroom of their choosing.
But last fall, voters in Houston repealed an antidiscrimination ordinance after a legal and political fight. In March, the battle moved to the state level, when North Carolina's Republican-dominated legislature squashed a local antidiscrimination ordinance passed by the Charlotte City Council.
Among other measures, the law, HB 2, said that bathroom choice must be based on a person’s sex at birth. Calling the law discriminatory, artists like Itzhak Perlman and Bruce Springsteen cancelled events, the NBA threatened to pull the all-star game, and several companies scuttled expansion plans.
Gov. Pat McCrory (R) has defended the law, saying it’s only “common sense” to keep people born with male genitalia out of the women’s room. The major concern voiced is that stalkers and exhibitionists would use ladies’ clothing to gain access to women and girls in private spaces.
There have been no such incidents in North Carolina, and journalistic investigations have not found confirmed incidents in the United States.
In early May, North Carolina and the Justice Department sued each other. Governor McCory argued the Obama administration overstepped constitutional bounds by threatening to withhold federal funds unless the legislature repealed the law. Along with the administration’s “guidance” letter to public schools, which was issued just days later, the tough tack against North Carolina raised fresh alarms among conservatives about Mr. Obama’s mission to “transform” America.
Obama, for his part, is trying to reinforce the idea that “the larger meaning of the American experience is the expansion of rights to groups that have been excluded,” says presidential historian Bruce Miroff.
It’s not going to be an easy fight, especially in a presidential election year. Some legislators in the South and Midwest have denounced the administration’s tactics. Mississippi, which passed a law similar to North Carolina’s, has announced it will disregard federal demands on transgender rights.
“These kinds of issues are going to be argued out at every level of government in the nation,” says historian Tim Blessing.
Are only religious conservatives furious about the new rules?
Furious is a strong word. For one, a majority of Americans say they support transgender rights generally, and a majority believe they should be able to use the bathroom that matches their gender identity. But many Americans, even far outside the South, remain wary of what the new federal rules really mean – especially when it comes to shower rooms and locker rooms in public schools. Why, many wonder, does gender equality trump the right of privacy?
It’s a question the Supreme Court may ultimately have to answer.
It really goes deeper than just bathroom access, doesn’t it?
Yes. After all, a big part of the civil rights movement in the 1950s targeted the Jim Crow tradition of “white bathrooms.”
Then in the 1970s, the women’s rights movement focused on the accommodation of bathroom needs in the workplace as a major equality hurdle. And in the 1980s, the federal government required that even private employers construct offices so that bathrooms would be accessible for workers with disabilities.
To many Americans and government officials, including Labor Secretary Thomas Perez, expanding bathrooms rights for transgender people is “a moral imperative.” For these people, discrimination is one of the greatest forms of societal immorality.
But isn’t there an opposite morality argument to make?
Absolutely. Indeed, the “bathroom bill” fight is an emerging front of broader culture war where traditional beliefs about sexuality and cultural norms are clashing with contemporary progressive ideas aimed more at personal liberation.
“There’s such a dominant – let’s call it cosmopolitan – consensus, on the expansion of equal rights that anybody arguing against it is put in a culturally defensive position,” says Mr. Miroff, the presidential historian. “It’s independent morality against Biblical morality.”