(The following is reprinted with permission of GWU Public Interest Law professor John Banzhaf)
U.S. District Judge Reed O’Connor in Austin, Texas, has reaffirmed an earlier order which prohibits the federal government from forcing public schools to permit anatomical boys from using the girls’ restroom based solely upon their claim to feel female, and made it clear that the prohibition, which is applicable to all genders, applies nationwide.
In making this ruling, the judge did not decide the key underlying issue – whether Title VII and Title IX require that persons must have unfettered access to restrooms contrary to their genitalia if they claim to be transsexual – but rather based his decision upon what public interest law professor John Banzhaf identifies as an important administrative law requirement.
Generally, before a federal agency can promulgate directives requiring entities outside the federal government to do or refrain from taking certain actions, these proposed rules must be published in the Federal Register, and the public must be permitted a reasonable period of time to comment on them.
During that period, mandated by the Administrative Procedures Act [APA], all members of the public are entitled to submit legal, factual, policy, and other arguments in opposition to the proposal, and the agency is then required to address all such major concerns, says Banzhaf, who teaches Administrative Law.
If this requirement had been observed, opponents would have argued very strongly that when Congress voted to prohibit discrimination based upon “sex,” the statute applied only to sex based upon external genitalia, not to whatever sex or gender a person claimed he thought he was at any particular time.
Opponents probably would also have argued that, if the law does in fact apply to transsexuals, any remedies must balance their interest is using restrooms with which they are most comfortable not only against the privacy interests of girls and women, but also very real concerns about sexual assault and even rape – especially if persons with penises can enter female restrooms based solely upon their own claims.
In other words, the concerns about assault are raised not primarily about transgender males, but rather about non-transgender males who would now have a legal defense if found within a female restroom.
Finally, those who object would probably have suggested that the restroom needs of transgender students can be accommodated by insuring that there are enough single-user or other all-gender restrooms, and that it is therefore unnecessary to force schools to permit students with penises to use female restrooms.
If the agency had permitted opponents to make these arguments before it acted, and if the agency moreover would have had to provide a reasoned legally valid explanation as to why it had rejected all these arguments, the outcome might have been very different, says Banzhaf.
In any event, if the APA had been followed, the resulting rule would almost certainly have been appealed, and a court would then decide whether the agency acted properly in rejecting the arguments.
Interestingly, both sides in this controversy – which pits the interests of transsexuals to use the restrooms with which they are most comfortable against the interests of girls and women not to have anatomical males free to use their restrooms without even any proof of their transgender status – seem to have overlooked an obviously win, win, win solution, says Banzhaf.
Banzhaf has won over 100 gender discrimination legal actions, supported LGBT rights, and criticized the North Carolina statute for requiring even transsexual people who have completed sexual re-assignment surgery to use restrooms corresponding to the genitals they were born with but no longer have.
Prof. Banzhaf cites an experimental all-gender multi-user restroom now being tested in his law school which not only satisfies the interests of both sides, but – unlike another proposed remedy – does not require the often-difficult and usually-expensive construction of many new single-user restrooms.
It also satisfies the needs of transsexuals as well as transvestites – those who dress in a manner inconsistent with their anatomical sex – to be able to have ready access to conveniently located restrooms without having to declare any particular gender preference or identity, while at the same time insuring that girls and women will not find anatomical males (transgender or otherwise) in their female restrooms.
What his law school has done, says Banzhaf, is simply to re-designate what was formerly a typical men’s restroom – with 3 urinals, 1 toilet in a stall, and 2 wash basins – as an all-gender restroom. Since the percentage of students who are transsexual is very small, most of the time this converted room simply functions as any other male restroom would, with many men able to urinate at the same time using the urinals.
However any person – including not only transsexuals, but also transvestites, men who are simply bashful, have shy bladder syndrome (paruresis), etc. – can enter this restroom without exposing their genitalia or identifying with any particular gender, and relieve themselves in the privacy of the stall.
Because typical women could even use this stall toilet if time is short and the lines at the nearby women’s room are too long, both F2M and M2F transsexual students can relieve themselves in the room’s stall-enclosed toilet without revealing anything about their anatomical or identity gender, notes Banzhaf.
Since in most buildings matching male and female restrooms are usually located close together, this tactic would open up almost half of all restrooms to transgender students, and seemingly comply with the directive that transgender students not be forced to use single-seat restrooms if other students need not do so.
While such a system would occasionally expose typical male users to an anatomical female in a restroom, most men seem unconcerned about any potential privacy invasion and, unlike the reverse situation, have little real fears about suffering sexual assaults or rape from anatomical females, Banzhaf notes.
So this approach – converting all or at least most male restrooms into all-gender restrooms – may very well provide a quick and easy way to comply with the new federal directive, and do so without adversely affecting transsexuals, nor typical girls and women concerned about privacy and sexual assaults.
Ultimately, all of these important legal questions, along with the issue of whether there is sufficiently strong evidence of congressional intent to preempt state law, and override specific state statutes on this very issue – as there are in North Carolina, for example – to require states to surrender their power to make determinations which have traditionally been left largely to state and local authorities., says Banzhaf.