Should Transgender People Have To ‘Compromise’ On Which Facilities They Can Use?

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This post continues a dialogue with Brandon McGinley of the Pennsylvania Family Institute, who opposes transgender nondicrimination protections because sex-segregated locker rooms allow for “camaraderie” while reducing the “sexual nature” of a space where there is usually nudity. I countered at ThinkProgress that the safety of transgender students, like those protected by California’s new law, trumps such fears. McGinley has written a follow-up, and though back-and-forth debates aren’t conducive to how we publish at TP, I wanted to continue the dialogue with him here.

His primary concern seems to be genitals:

To be clear, I am not arguing that transgender people should go in the woods. All the examples I gave of the troubling implications of this type of legislation were of people who appeared as one sex being granted access to facilities reserved for the opposite sex. I didn’t address the question of what facilities people who have undergone sex change surgery should use because, to my understanding, it is not a source of controversy.

The common sense answer is this: Folks should use the facilities where they would appear, regardless of their own convictions about their gender, most at home, or a private unisex facility. Some gender non-conforming people might prefer to use facilities in accord with their (internal) gender identity, and some other people might be uncomfortable even with a post-op transgender person in the bathroom; though both of these impulses are understandable, this is the type of compromise on which social comity is built. But more than that, it just makes sense given the purpose of sex-segregated facilities to begin with, as I argued in the Public Discourse essay.

First, let me say this: If McGinley believes that transgender people who have had sex-reassignment surgery should be protected from discrimination, I’m glad to hear it. It’s certainly a start. Unfortunately, only about 20 percent of people who identify as trans actually have the surgery. In addition to being too expensive for many trans people (who also tend to experience high rates of poverty thanks to employment discrimination), it also results in losing their reproductive ability. Some trans people find coherence with their gender identity without making this very personal sacrifice. It’s my hope that McGinley is not in favor of forcing people to be sterilized in order to participate equally in society; perhaps he can clarify this point in another response.

Moreover, let’s talk a little bit about appearance. Perhaps McGinley doesn’t appreciate the definition of gender identity, which is an enduring aspect of identity. It’s not a switch that is flipped daily. In other words, there’s nothing about gender identity protections that enables people to “fake” being the other gender just to sneak into the other restroom. They are designed to protect people who live their whole lives according to their gender identity.

Given his caveat for people who’ve had gender reassignment surgery, it thus seems that he is defining “appearance” entirely by genitals. But that’s really not what appearance means to most transgender people. If we’re talking how safe other people feel in the locker room, let’s take a look at a few test cases.

Here’s Masen Davis, executive director of the Transgender Law Center:

Masen Davis

Davis is transgender, which means he was assigned female at birth, but he identifies as a man and has used hormone therapy as a part of his transition. I think most people would look at him and agree he sure looks like a man. Now, I don’t know what surgeries Davis may or may not have had, and it’s frankly not anybody’s business but his, and it’s an irrelevant point to the rest of his appearance. I don’t think anybody looks at a bald man with a beard and concludes that he must use the women’s room. (I’m pretty sure Davis won’t mind me using him as an example like this since he uses himself as an example in media appearances all the time — thanks Masen!)

Just to provide a reverse example, here’s Jenna Talackova, who placed in the Top 12 in last year’s Miss Universe Canada contest:

Jenna Talackova

Which locker room would Talackova be safer in, the men’s or the women’s? I think it’s fair to objectively say that she is quite a beautiful woman, and subjecting her to a men’s locker room because she was assigned male at birth is most definitely not in the best interest of her safety and well-being.

According to what I think McGinley is saying though, Davis and Talackova should have to drop trou and let someone else assess the current state of their genitals in order to determine which facility they’re allowed to use. Exposing transgender people to that kind of skepticism and humiliation surely cannot be the only solution “on which social comity is built.” And what exactly does that “social comity” mean, exactly? That women won’t have to see a trans woman’s penis? What exactly is the problem that really needs to be solved? If the answer is “safety,” then that’s just an unfounded, prejudiced assumption that trans people are somehow more likely to be dangerous or predatory. If the answer is, “trans people’s bodies are icky,” that’s outright intolerance. And if the answer is just that people should never have to see a genital that they don’t have one of themselves, that’s an argument with no foundation whatsoever.

McGinley also defends the idea that imposing heteronormative standards is not a problematic thing to do:

One might object that this second point is heteronormative, and indeed it is because the world is heteronormative. We can never completely de-sexualize any aspect of the human experience, but we can try to minimize the sexual nature of places and experiences that ought not to be sexual. And the fact of the matter is that opposite-sex sexual attraction is the norm in the human species, both in terms of raw numbers and its orientation toward procreation. Nude men and women comingling is more sexually-charged, more often than nude men or nude women comingling. Only the most abstract and obdurate sexual theoretician could deny this fact.

We should clarify some language here. The world is not heteronormative; it is simply hetero-majoritarian. Imposing the norms of a ruling class of people — say, white people — on a smaller segment of the population — say, African Americans — is not really a precedent that is easily defended.

To be fair, I do see some merit to what he is saying, at least to the extent that I am not advocating for gender-neutral locker rooms. But heteronormativity doesn’t justify discrimination against transgender people. McGinley doesn’t seem to have any problem letting gay men use men’s locker rooms or lesbian women use women’s locker rooms, so I don’t see how this argument warrants any different kind of policy against transgender people. In particular, transgender people identify as something other than straight about 77 percent of the time; in fact, there is an incredible diversity of sexual orientations within the trans community. There’s really no valid way to justify that trans people would somehow add to how “sexually charged” a locker room is. If anything, this assumption once again echoes the prejudiced beliefs that trans people are somehow more deviant or are somehow a threat to “safety” — stigma, not “common sense.”

Despite his best efforts, I still don’t see a compelling argument against gender identity nondiscrimination protection that isn’t simply based on some degree of discomfort regarding transgender people. Discomfort alone does not justify depriving trans people of equal access to society, including the freedom to use the restrooms and locker rooms that match their gender. If there’s anything I’ve learned from the trans people in my life, it’s that their genitals are pretty much the least interesting thing about them.

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