Should Trans People be Permitted to Use Bathrooms of Their Choice?

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School bathroom

In the wake of Donald Trump’s election victory last November, a wave of hate crimes spread across the US. Perpetrated against minority groups, those who bore the brunt of the attacks were Muslims, Latin Americans, black people and members the LGBTIQ community.

As this transpired, concerns were raised as to what Trump’s victory would mean for transgender people. There was the widely reported case of a trans woman’s truck being set alight by Trump supporters. Some trans people were even talking about ‘detransitioning’ to protect themselves.

In his first month in office, Trump delivered on a number of campaign promises targeting Muslims, Mexicans, undocumented immigrants and Native Americans.

Once he finally turned his attention towards the transgender community, the new president of the most powerful country in the world decided to attack already vulnerable trans children.

Landmark direction revoked

Last week, Trump sent out a letter officially revoking a federal guidance issued by the Obama administration last May, which directed public schools to allow transgender students to have access to bathrooms and locker rooms matching their gender identity.

The decree, which was sent out by the departments of education and justice, also contains extensive guidelines on how to ensure trans students are treated fairly. Although not legally binding, the letter made clear that if schools didn’t follow through on the recommendations, they’d risk losing funding.

In making the official guidance, the Obama administration cited Title IX of the Education Amendments of 1972, which prohibits sex discrimination in schools. It was argued that discriminating against transgender people based on their gender identity is a form of sexual discrimination.

This interpretation of Title IX had broad significance, as it meant the Obama administration was recognising that federal civil rights laws do indeed include trans people. Under most US state and federal laws transgender people aren’t explicitly protected from discrimination.

The trouble in North Carolina

Obama’s official guidance came in response to the controversial North Carolina HB2 law, known as the bathroom bill. Passed in March last year, the law provides that in government buildings individuals can only use bathrooms and changing facilities that correspond to the gender on their birth certificate.

Currently, there are moves underway to repeal the North Carolinian law, which effectively removes anti-discrimination protections for LGBTIQ people.

The implications of Trump’s decision

The Obama administration’s guidance had already been put on hold by a federal judge, after 20 states had challenged it in the federal court.

Trump’s decision to revoke the guidance was another one of his campaign promises. It signals that his administration has a much narrower interpretation of federal civil rights laws, which is one that doesn’t include transgender people.

During his election campaign, Trump described the guidance as a misinterpretation of federal law. Revoking the decree on trans students’ rights is seen to be protecting states’ rights, and was done “in order to further and more completely consider the legal issues involved.”

The Supreme Court case

Further consideration of the legal issues surrounding transgender students using public bathrooms is set to take place during the forthcoming US Supreme Court case, GG versus Gloucester County School Board.

Commencing on March 28, this case is the reason why the Trump administration decided to repeal Obama’s guidance now, according to White House spokesperson Sean Spicer.

The case was filed on behalf Gavin Grimm, a transgender male student at Gloucester High School. His legal team is arguing that the school’s bathroom policy that segregates transgender students violates Title IX and is unconstitutional under the Fourteenth Amendment.

A district court initially dismissed Gavin’s claim under Title IX. However, in August last year, the US Court of Appeals for the Fourth Circuit overturned the lower court’s decision. But now the school board is appealing that court’s decision in the Supreme Court.

Discriminating against transgender people based on their gender identity has already been ruled as a violation of federal law by several federal courts of appeal.

Trans youth are already at risk

The Obama administration’s guidance was the result of years of campaigning by transgender advocates, and provided protections for young marginalised members of the community. Trump’s move opens the door for increased discrimination against trans youth both institutionally and in the private realm.

Given that this decision basically reinforces the idea that transgender people are not deserving of legal protections, it likely increases the chance of transphobic hate crimes being carried out. Trans youth are already at a greater risk of suicide and hate-related violence.

A trans rights activist weighs in

Katherine Cummings is an Australian transgender rights activist and author. Back in the 1980s, she was meeting with advisors to politicians, arguing for increased rights for trans people. These included the right for married people to be allowed to change the gender on their birth certificates.

Ms Cummings believes it’s too early to tell how far the Trump administration might go. But on the subject trans people being allowed to use the toilet that matches their gender identity, she believes the rules will eventually fall by the wayside.

As an example, Ms Cummings posed the question, “Are girls going to welcome female to male transgender people appearing in their washrooms and change rooms, with their gymnasium muscles and their beards?”

Katherine also said she finds it “equally unlikely that boys are going to react well to having people who are living in the female role turning up in their toilets.” She added the situation is going to lead to various issues that are “going to have to be dealt with.”

Transgender rights in Australia

According to Ms Cummings, it’s doubtful that Australia will be heavily influenced by developments in the US.

“The United States has in the past made its charity for some nations dependent on their refusing to allow abortions,” she told Sydney Criminal Lawyers®, “well that sort of blackmail can’t operate in Australia.”

As for how transgender rights are going in Australia, Ms Cummings thinks “they’re improving gradually.” She pointed out that a Victorian bill allowing trans people to more easily change the gender on their birth certificates passed through the lower house last year, but failed in the upper house.

Progress in South Australia

Earlier this month in South Australia, the Department of Education introduced a new policy for transgender and intersex students. The policy, which has been implemented in the state’s public schools, allows students to use the toilets of the gender they identify as.

It also ensures that trans students can use their preferred name and pronoun, choose which school uniform is appropriate for them, share the sleeping quarters on school camps that corresponds with their gender identity and partake in sports as their identified gender.

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Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.

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