May 13th, 2020 
Then, use this Discussion Board to comment on the features that make Kelsey’s essay a persuasive one:
How does she engage with a resistant audience?
How does her issue match up to the criteria for what constitutes a successful essay for Unit 3?
What are some specific moments that you found to be especially strong and persuasive? Why?
What are some questions or concerns that skeptical or resistant readers might have?
What revision suggestions would you have for Kelsey?
Bathroom (In)Security
Kelsey Reith
Often when there is debate over a political issue, Americans will look to the Constitution for guidance. But how can a solution be reached when that legislation is vague or incomplete in the context of todays society? There are many factors that the politicians of our past would have never even considered when making the policy to govern their future country. Even something as seemingly straightforward as policy on public restrooms is now under question. It is no longer as simple as men use the mens room and women use the womens room, because the peoples general conception of sex and gender are no longer that simple. A glaring question has been raised against public policy: which bathroom are transgender people supposed to use? When ones sex assigned at birth is different from their current gender identity or expression, which bathroom are they to use, the bathroom that matches their birth certificate, their genitals, or their identity?
Many who think transgender people should use public restrooms according to their birth sex-assignment are reasonably worried about several issues. They may be concerned about their personal privacy rights, protecting them from having to use bathrooms with those of the opposite sex. A mother in Oregon is suing her school district over the uncomfortable, embarrassing, and awkward encounter her son experienced when a transgender peer entered the bathroom while he was using it. She first responded by asking the school to take action and perhaps have the transgender student use a single stall bathroom. The school consulted the law and decided to continue to let the transgender student use the mens bathroom. Concerned for her sons privacy rights she filed a lawsuit (Cegavske). Law professor Eugene Volokh argues that its unconstitutional to let transgender people use bathrooms of their identity rather than their biological sex. Under the Equal Protection Clause persons must be protected from being observed partially clothed by the opposite sex. This idea has been supported in several court cases over the years. York v. Story (1963) stated that the desire to shield ones unclothed figure from view of strangers, and particularly strangers of the opposite sex, in impelled by elementary self-respect and personal dignity. Sepulveda v. Ramirez (2012) stated that the right to bodily privacy is fundamental common sense and decency protect a parolees right not to be observed by an officer of the opposite sex while producing a urine sample and many more (Volokh). We are all put in a vulnerable position when using public bathrooms and showers, and its laws like these that protect us from humiliation and loss of dignity.
Another concern is that of safety. There is a possibility that a transgender person could sexually assault someone in the bathroom, but its even more worrisome that cis-gender men that are sexual predators will dress as a woman, pretending to be transgender, in order to enter womens bathrooms and commit assault. Mike Huckabee, a former governor of Arkansas, once joked, Now I wish that someone told me that when I was in high school that I could have felt like a woman when it came time to take showers in PE, highlighting the very mindset that would strike fear into any woman (Barnett). The threat of a predator taking advantage of the transgender identity is simply too high of a risk.
Finally, this group may feel that what isnt broke shouldnt be fixed. Bathrooms have been separated by sex since the 19th century. Law professor Terry Kogan theorizes that sex-separated facilities were originally created as a way to protect women for purposes of sanitation and privacy during the Industrial Revolution when more men and women worked side by side (Barnett). Bathrooms as they stand are sufficient in creating a safe environment for the larger population. Why change it now and take the unnecessary risks of privacy violation and sexual assault?
I understand why one might feel that letting transgender people use the bathroom of their gender identity would create more problems than solutions. Nonetheless, I have to disagree with this stance. I believe transgender people should be able to use which ever bathroom they feel best reflects their gender identity. For me the issues of human rights, safety, and the evolution of bathroom policies make it clear how the transgender community should be treated when it comes to public facilities.
First, transgender peoples ability to use the correct bathroom is not simply a matter of transgender rights, but human rights. There is a misconception that transgender people are people who used to be one gender and are now another, or somewhere in between. A transgender man, for example, is not a man who used to be a woman, he is a man, and he would like to be treated as a man and to be able to use the bathroom as such. Tyler, the transgender student involved in the lawsuit discussed earlier explains this idea, See it like this, why do we call a musician a musician? Its because thats what they are. They dont feel that way they are that way (quoted in Cegavske). This distinction is vital to continue a conversation on the treatment of the transgender community. It is often forgotten that transgender rights are in fact human rights and humans have a right to use public restroom and facilities. A suit filed by the Justice Department states that not allowing transgender people their human right of using public bathrooms of their identity results in their isolation and exclusion, and perpetrates a sense that they are not worthy of equal treatment and respect (Berlinger). The transgender community is a marginalized group in the U.S., and they will continue to be an oppressed group if they are continued to be treated as if their rights are not equal to all human rights.
Next, safety is not only a concern for those that would support the strict sex-assignment use of public restrooms; safety is a huge issue for the transgender community. Imagine a woman, who would for all intents and purposes appears to be woman, but perhaps her birth certificate says otherwise. What might happen to her if she were to follow her sex-assignment, and walk into the mens bathroom? This is the reason that harassment is frequently reported by the transgender community. The 2015 U.S. Transgender Survey found that in the past year 59% of those surveyed had avoided the bathroom out of fear of conflict, 12% had been verbally harassed, and 1% had been physically and sexually harassed while using public restrooms (Barnett). The way transgender people are politically and socially treated in bathrooms is an issue of discrimination. This treatment has been shown in several studies to lead to violence, poverty, and isolation. which puts transgender peoples quality of life at risk. Between 2003 and 2016, there has only been 1 case of a transgender individual committing sexual assault in a public restroom, while there have been 19 cases of cis-gender men pretending to be transgender in order to enter womens bathrooms and commit sexual assault. There has been no evidence to suggest a connection between laws that permit transgender people to use their preferred bathrooms and an increase in cases of assault by cis-gender men disguised as transgender women (Barnett). What this means is that predators have been committing sexual assault under the guise of the transgender identity for a significant time and there hasnt been a rise of these occurrences in areas where restroom facility policy is favorable to the transgender community. When it comes to sexual assault in bathroom, laws that allow transgender people to use their preferred restroom are not the problem, and not allowing them to do so is not the solution to the behavior of cis-gender predators.
Finally, bathrooms policy isnt nearly as stagnant as many would believe. A long history exists of reconsidering and changing the laws that dictate public restrooms. Policies and social standards surrounding bathrooms have been questioned, rallied for, and adapted numerous times. It wasnt until 1954 that laws were instated that prevented bathroom to be segregated by race, and it wasnt until 1990 that laws were made that protected bathroom discrimination against those with disabilities (Killermann). Policies for public facilities have and are meant to evolve with the changing times. The inclusion of a transgender population growing in numbers and voice is the next logical step in bathroom equality.
As an advocate for equality of all, and consequently an ally of the LGBTQ+ community, I want to know all I can about the issues that concern and affect transgender people. While I understand the concerns against more permissive restroom laws, I believe the best course of action would be to allow transgender people to use the bathroom which matches their gender identity. The importance of human rights, safety, and progressive law-making reveal to me what I believe would be best for our society.
Works Cited
Barnett, Brian S., et al. The Transgender Bathroom Debate at the Intersection of Politics, Law, Ethics, and Science. The Journal of the American Academy of Psychiatry and the Law, vol. 46, 2018, jaapl.org/content/46/2/232.
Berlinger, Joshua. North Carolina Bathroom Law: Point, Counterpoint. CNN, 10 May 2016, www.cnn.com/2016/05/10/politics/hb-2-point-counterpoint/index.html.
Cegavske, Carisa. Plaintiff in Transgender Bathroom Lawsuit Says She Just Wants to Protect Her Son’s Privacy. NRToday.com, 21 July 2018, www.nrtoday.com/news/court/plaintiff-in- (Links to an external site.)transgender-bathroom-lawsuit-says-she-just-wants-to/article_d2085ec4-0428-5c48-805f-a3687b2c98cc.html.
Killermann, Sam, and Gender/Social Justice. Let’s Talk About Bathrooms. It’s Pronounced Metrosexual, 27 Sept. 2018, itspronouncedmetrosexual.com/2017/03/lets-talk-about-bathrooms/.
Volokh, Eugene. Biological-Sex-Based Bathroom/Shower Rules Are Likely Constitutional. The Washington Post, 29 Aug. 2016, www.washingtonpost.com/news/ volokh-conspiracy/wp/ 2016/08/29/ biological-sex-based-bathroomshower-rules-are-likely-constitutional/?utm_term=.0927600a4f86.
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