New Massachusetts Public Schools Guidelines Give Trans Students The Right To Use Their Bathroom Of Choice

I don't know about you, but I generally consider the finer anatomical attributes of my fellow public restroom patrons to be none of my business.

Mar 4, 2013 at 3:00pm | Leave a comment

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The most humiliating thing that's ever happened to me in a public restroom is getting caught taking a ridiculously moody self portrait. Which is really not that humiliating at all.

Last month, the Massachusetts State Department of Elementary and Secondary Education released a memo sent to Massachusetts public schools, providing new guidelines on how schools are expected to handle the facilities needs of transgender students.  

The new policy, which is expected to go into effect immediately, asserts the right of trans students to use the bathrooms and locker rooms that align with their gender identity, and if the student does not feel comfortable with these options, a reasonable accommodation in the form of a unisex bathroom must be made available. It also affirms that trans students are entitled to play sports on teams matching their gender.

The whole memo is remarkable in its thoroughness and its commitment to providing a “safe and supportive” school environment for trans students, and does not simply direct schools to the new guidelines, but also defines all its terms and provides legal grounding for all its points. Massachusetts is one of only 13 states with laws that specifically bar schools from discriminating against students on the basis of sexual orientation or gender identity; the protection of trans students under these laws began after the 2011 passage of “An Act Relative to Gender Identity,” which defined and added “gender identity” to the existing laws, and which went into effect in July of last year.

Since then, however, no formal directives had been laid out for public schools until now, with the release of these new guidelines, which still leave individual schools the freedom to apply them as they feel is appropriate. And it’s hardly surprising that as pleased as those who have fought for these protections may be feeling, there’s at least as many folks up in arms about it. 

The Massachusetts Family Institute (and since it has the euphemistic “family” in the name, you just know it’s going to be extra hate-y) is stepping up efforts to introduce a new act, to replace the gender identity act above, that would require students to use bathrooms according to their anatomical genitalia, even if said anatomy is in contrast to the gender identity they present in their daily lives (how they would check this remains a question). On Friday, the MFI president elaborated on the group’s concerns, saying that the “overriding issue with this new policy is that opening girls’ bathrooms to boys is an invasion of privacy and a threat to all students’ safety.” 

This issue has even made national news, when Google-allergic Bizarro-world-resident Bill O’Reilly took to his Fox show last week to make predictions about the policy that betray a massive albeit totally unsurprising lack of intelligence about trans individuals. (I rarely do trigger warnings on things, but the degree of vicious mockery in the O’Reilly clip really upset me, so consider yourself cautioned.) Among O’Reilly’s brilliant analyses:

“This is truly madness, ladies and gentlemen. You're telling me that a kid can go to a public school in Massachusetts, immediately upon entering the school take off the kid's shirt and put on a dress, alright, go to the girls' room when he's a boy, and then change his name from John to Tiffany, and then after school, put the shirt back on, go home, and he's still John.” 

Of course, what O’Reilly -- and I’m sure most of the folks opposed to this legislation -- misses here is that a trans woman/girl is not a “boy,” regardless of anatomy. That is kind of the point. 

But as bugged as he is by the bathroom issue, O’Reilly seems especially disturbed by the section in the Massachusetts guidelines asking educators not to confront a student’s parents about the student’s gender identity in school, acknowledging that many trans kids may fear their parents’ response to their gender nonconformity and may secretly live as a different gender at school.

Their possible reluctance to be forthright with their families is not without reason -- according to some estimates, over half of trans students are rejected by their family of origin after coming out, and as many as 20 percent are physically assaulted by family members as a result. 

I’m not going to unpack all the ways in which the O’Reilly reaction to this policy is wrong; Carlos Maza has already done a great job of that over on Media Matters. Instead I’m interested in why even people who are not Bill O’Reilly -- in other words, people who are otherwise fairly in touch with reality -- react to these bathroom policies with fear and revulsion. 

What’s been collquially termed “bathroom hysteria” is a common phobic reaction to trans-friendly bathroom policies, whereever they may exist. Bathroom hysteria most often focuses on the perceived threat of trans women in ladies’ rooms, and relies on stoking panic over the possibility of sexual assault, which is certainly something many women have good reason to fear in a general way, but it also makes a few strange assumptions about the nature of public restrooms as sexualized spaces (not to mention the notion of trans people as dangerous and scary).

The reality is that, when it comes to stranger rape, public restrooms are no more dangerous than anywhere else -- would-be rapists are generally likely to scout isolated or secluded spaces, so while some little-trafficked public restrooms may fit this bill, so do lots of other non-bathroom areas, from stairwells to parking garages. 

Still, we learn to fear the public restroom more than most, and probably not for entirely irrational reasons. Relieving oneself is a vulnerable act. Our pants are literally down. There may even be some deep biological need to feel secure in such a posture, lingering somewhere in our reptile brains. But while it would be great if we knew that assault or rape could be stopped by the mere presence of clothing, the truth is that your average rapist -- even your average stranger rapist -- is unlikely to let pants-removal stand in the way of his assault, so the relative safety we feel outside the bathroom is probably illusory.

The other obvious problem here is the cultural expectation that anyone with a penis -- regardless of gender identity -- will be driven out of their senses should naked female parts be in locked stalls in the immediate vicinity. As though a penis is a terrible creature that might cause its attached person to spontaneously rape without compunction if it happens to sense an uncovered vag nearby. 

This is absurd. People with penises, as a group, do not go about their lives all day long consciously resisting the urge to rape people, and to portray masculinity as such is destructive to everyone, no matter their gender identity. It draws a practically irrevocable connection between “penis” and “vaginal sex” that erases the diversity of sexual orientations amongst penis-toting individuals. It assumes that the impulse to rape is normal and universal amongst people with penises, and therefore, to some extent, even acceptable so long as the penis-haver manages to resist acting upon their "natural" urges. 

But the impulse to rape is not normal, and painting it in such a fashion creates a standard of normative masculinity that actually props up both sexism and rape culture rather than helping to dismantle it. So to promote this kind of fear-the-penis thinking even amongst schoolkids who are still learning to conceptualize gender seems... counterproductive to me.

More than that, trans folk are not more likely to violent offenders than anyone else (I know, Jame Gumb ruined it for everybody). Indeed, trans people have way more reasons to fear public restrooms themselves, as they are at a far greater risk of being victims of violence on the basis of their gender, rather than perpetrators of it. According to a 2011 report from the National Coalition of Anti-Violence Programs, trans people are at an overall 28% higher risk of violence than cisgender people. Trans women in particular are at a higher risk still, and trans women of color are at the highest risk of both violence and death -- LGBTQ women of color represented 87% of the hate-motivated murders for that year. 

Even when it comes to the more vague claims of potential “discomfort” for cisgender folks faced with trans people in their public shitters, I’m not especially sympathetic. While I can’t speak for everyone, I don't usually trouble myself with checking out the anatomy of the people I am sharing a public restroom with, no matter what downstairs equipment they may be packing. That seems like it would be socially awkward. My plan upon entering a public restroom is to relieve myself, obsessively wash my hands, and then GTFO, and I wonder about anyone who’s concerned with what organ the other bathroom patrons are using to pee with.

The worry over “discomfort” is really a matter of not wanting to disrupt the comfort of those who are accustomed to being comfortable; it privileges the comfort of cisgender individuals over that of trans people. I guess the idea is that trans people should be used to feeling uncomfortable by now, given that so many of them must live lives of constant vigilance, fearing discovery or even arrest, as in some states, trans people can be arrested for using the restroom that aligns with their identity instead of their anatomy.

And even in states where such arrest is illegal, it still sometimes happens. In a recent example -- also in Boston, where legal protections for trans people exist -- Brenda Wernikoff recently settled a lawsuit against the city after she was arrested for refusing to leave the women’s restroom in a homeless shelter. Wernikoff, who is trans, was in the shelter because her family had rejected her gender identity and she had nowhere else to go.

According to Wernikoff, over the course of the incident, the arresting officers pointedly referred to her as “sir,” and by her masculine birth name, which she had legally changed. And then, at the police station: 

After she was arrested for refusing to leave a woman’s bathroom at a homeless shelter, [Wernikoff] said four to five male officers at the South End police station forced her to remove her shirt and bra and expose her breasts.
According to the federal lawsuit, “The officers then ordered Ms. Wernikoff to jump up and down, causing her breasts to jiggle” as the officers laughed. “I mean belly laughs,” Wernikoff said, describing the May 2010 incident. 

So who, exactly, is likely to feel more uncomfortable here?

I can hear the criticism already: Hey Lesley, you know, this is sort of insensitive to folks who are genuinely scared of or unfamiliar with trans folks.

You're right! It totally is! And that's too fucking bad. The ability of trans people to safely use the bathroom that aligns with their gender identity is a significant step in the direction of acceptance of gender nonconformity as just one more variety of human identity and experience. The meaningfulness of the effort is worth far more than the momentary squicks a cisgender person might feel at sharing their gender-specific space with someone whose identity they do not understand. 

So far as the new Massachusetts public school guidelines are concerned, kids aren’t stupid. Indeed, kids are in the midst of the profound process of learning how to understand their world, gender included. Although trans kids are still bullied at staggering rates, this doesn’t have to be the expected state of affairs forever, and by creating a culture that accomodates trans kids, these guidelines may be an early step toward real social change on this issue for future generations.

Children tend to learn social norms from the authority figures in their lives, be they family members or teachers.  Just like kids with candidly racist parents are more likely to grow up with candidly racist ideals, we can hope it works in positive ways too, such that maybe kids who grow up in schools that affirm the rights of trans students to a supportive educational environment will grow up with a greater ability to accept gender diversity as just another aspect of human variety. And the bathroom may be the best -- if the most humble -- place to start.