By Emrhys Bradley
Arguments regarding transgender people’s right to use public restrooms without discrimination between their biological sex and their expressed gender have been in stalemate for years. Meanwhile, the harmful effect of such discrimination is ongoing. Given this, as well as the minimal actual benefits of having restrooms be separated by gender, it is the intent of this analysis to argue that simply removing the designation of restrooms between sexes and genders would bypass the issue entirely.
Before asking the question “should we have gendered restrooms,” we should look at why we have them in the first place. Terry Kogan, a law professor at the University of Utah who has studied restroom laws in America, claims that our restrooms are not separated because of the biological differences between males and females, but rather because of society’s view of women at the time. As he told Maya Rhodan for Time Magazine, “[Ladies’ rooms] were adopted to create this protected haven in this dangerous public realm.” This means those who passed the first restroom separation laws, starting with Massachusetts in 1887, did so because they believed women were inherently weaker than men and, thus, needed to be comforted and “protected.” This is evident given that the first women’s restrooms were designed to appear more like a home bathroom than a public restroom at the time with, as stated in the Time article, “curtains and chaise lounges.” Add to that the fact that these laws, many of whom specifically targeted workplace restrooms, were being passed just as women were entering the workforce, it seems to be clear that the origin of the public restroom is founded in a misconception about women’s health and safety.
On the topic of women’s health and safety, many people to this day believe that gendered restrooms protect women, not from the harsh realities of the outside world, but from sexual predators. This is, however, unlikely, as most sexual violence against women is committed by people who already know the victim, as a report from the U.S. Department of Justice found in a special report titled “female Victims of Sexual Violence, 1994-2010.” This report found that between 2005 and 2010, 78% of sexual violence against women was perpetrated by “a family member, intimate partner, friend, or acquaintance.” Thus, it would stand to reason that it’s incredibly unlikely that a significant number of strangers would seize an opportunity presented by nongendered restrooms to commit such acts of violence. This same report found that the percentage of victimizations that occurred at or near a “commercial place,” wherein a public restroom may be found, actually decreased from 16% in 1994-1998 to 10% 2005-2010, with only a 3% increase in schools and 1% increase in other open areas including public transportation. Meanwhile, the percentage of victimizations occurring at or near the victim’s home increased by 6% from 49% in 1994-1998 to 55% in 2005-2010, maintaining it as the most likely place for sexual violence against women and reinforcing the idea that women aren’t actually in that much danger in public restrooms.
Despite these statistics, some people point specifically to transgender people as a threat. There is concern that allowing transgender people to use restrooms based on their gender and not on their biological sex will prompt predatory men to pretend to be transgender to infiltrate women’s spaces and commit acts of sexual violence, as is shown by the multitude of conservative organizations which have compiled lists of alleged cases of such violence, as found by Brian S Barnett, Ariana E. Nesbit, and Renee M. Sorrentino in their article “The Transgender Bathroom Debate at the Intersection of Politics, Law, Ethics, and Science.” Despite the many allegations, only 20 cases between these sites actually seemed to include a perpetrator who was transgender, claiming to be transgender or appeared as a member of the opposite gender. These 20 were also not limited to the U.S., with some from Canada, one from the U.K. and one from Japan, with a timeframe of 2003-2016. Furthermore, an archival review from the Police Foundation from 2017 found no cases of any such crimes being committed. They looked at sexual assault complaints in the cities of Atlanta, Georgia; Dallas, Texas; Miami Gardens, Florida; and Tucson, Arizona, both before and after the implementation of transgender restroom protections, and “did not find evidence of sexual assaults taking place in which men, under the guise of being women, entered women’s bathrooms to commit a sexual assault.” Both sources indicate that neither transgender women nor cisgender men pretending to be transgender women pose a significant threat to the safety of women in public restrooms.
Many people still believe this myth, however, and it’s causing significant problems for transgender people. A survey conducted by the Williams Institute asked transgender and gender nonconforming people in Washington, D.C. about their experiences using public restrooms whose results were published by Jody L Herman in a report called “Gendered Restrooms and Minority Stress.” According to the report, 68% of those who took the survey reported at least one instance of verbal harassment, which included 87% of all black respondents and 63% of all white respondents. 18% reported having been denied access to a public restroom entirely, including 25% of black respondents and 13% of white respondents, and another 9% reported at least one instance of physical assault within a restroom. Not only does this report show that this transphobic myth is dangerous, causing people to assault and harass others that they falsely believe to be predators, but it is disproportionately affecting black people. This intersection of marginalized identities creates an especially significant risk for black transgender and gender nonconforming people simply trying to use a public restroom. This, in turn, impacts other aspects of transgender and gender nonconforming people’s lives, as not being able to find accommodations will discourage them from being in public for extended periods of time, including attending a job or pursuing higher education.
Some of these issues can be addressed with policy change. By implementing protections for transgender and gender nonconforming people’s restroom rights, they can feel safer and more included being in public overall. The fight for this, however, has been ongoing since at least 2014, and it shows no sign of ending soon. In 2014, Houston, Texas passed the Houston Equal Rights Ordinance, which provided such protections for LGBT people to exist in many public spaces, including restrooms. However, this bill was repealed the following year, which Eesha Pandit attributes to “conservative religious opponents to the ordinance… banking on transphobia” in her article “Fallen HERO: The Campaign that Couldn’t Save Houston.” According to Pandit, “trans bathroom panic” was the leading factor in many voters’ decision to repeal the bill, showing yet again how pervasive and harmful this myth is. These transphobic politics were exacerbated during Donald Trump’s presidency, coming to a head in the summer of 2020, when the Trump Administration tried to create a universal legal definition of sex as being “a person’s status as male or female based on immutable biological traits identifiable by or before birth.” This could have completely invalidated our current social definition of gender, making it incredibly easy for such transphobic policy decisions to discriminate against transgender and gender nonconforming people. This was the reasoning used by the Supreme Court, who blocked this definition, but this simply shows that even among the highest branches of the U.S. government, the fight is far from over.
As this analysis has revealed, there is no evidence that gendered restrooms help decrease the amount of sexual violence against women in the U.S., and experts claim that the reason they were conceived of in the first place was influenced by sexist misconceptions at the time. Meanwhile, transgender and gender nonconforming people experience high amounts of harassment when trying to use public restrooms that are separated by gender, and the debate over whether they should legally be allowed to use the restroom that aligns with their expressed gender is ongoing, despite the fact that arguments against such protections have no factual basis. Thus, removing the separation of bathrooms by gender would not pose any greater risk to women than our current, segregated bathrooms do, and would remove the necessity for the question of whether trans identities are valid, and by extension, the harassment over such arguments.
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