“THESE children have fewer rights than prison inmates,” says Tom Morrison, a Republican state representative in Illinois. Mr Morrison is talking about girls at a high school in his constituency, Palatinate, who share a locker-room with a transgender girl.
Late last year the Department of Education ruled that the school had violated anti-discrimination laws by banning a pupil, who was born male but identifies as a girl, from the girls’ locker room. Male prison inmates have successfully argued in court that letting female guards supervise them when they are taking a shower violates their privacy, reasons Mr Morrison, so they now have more rights than Illinois schoolchildren.
Schools in Illinois, as in many other states, have a patchwork of rules governing where transgender people can pee. Some allow them to use the locker and restrooms (or loos to Brits) of their choice; others make them use designated facilities. This is confusing for parents and children, says Mr Morrison, which is why he introduced a bill in the legislature on January 20th that would require all pupils at high schools in Illinois to use loos and changing rooms that correspond to the gender on their birth certificate. The bill would make it optional for schools to provide separate facilities for transgender pupils.
The debate in Illinois is part of a national discussion that pits those who think of gender as something a person is born with against those who argue that being male or female can be a choice. Progressives have taken the “choice” side of the argument—in April 2015 the White House added a gender-neutral toilet—prompting conservatives to take the opposing one. In South Dakota a bill similar to Mr Morrison’s is moving forward in the legislature. Last autumn voters in Houston, Texas, rejected a broad anti-discrimination ordinance because its opponents had depicted it as a “bathroom ordinance” that would enable potentially predatory men and even registered sex offenders to enter women’s loos. In Indiana Jim Tomes, a Republican state senator, introduced a bill last December which would make the use of a facility that does not correspond with a person’s birth certificate a misdemeanour, punishable with up to one year in jail and a fine of $5,000. A spokesman for Mr Tomes says the bill will not be submitted to a vote in the legislature, but that does not mean that “similar language in a different bill couldn’t be considered”.
Given all the troubles faced by transgender people, who make up just 0.1% of the population according to the least unreliable estimate, why the focus on loos? According to Human Right Campaign, a gay lobby group, in the first ten months of 2015 at least 21 transgender people—nearly all of them black or Hispanic women—were killed, more than in any other year recorded by activists. Unemployment among transgender people is double the national rate and as much as four times that of the general population for non-whites. Fully 90% of those who have a job say they have experienced harassment at work.
The issue is more pressing than it seems, says Kim Hunt of the AIDS Foundation of Chicago. Some transgender people do not go to the loo all day because they have been harassed, assaulted or kicked out of one. This can result in dehydration, urinary-tract infections and kidney problems. A survey by the Williams Institute, a think-tank, found that 68% of those questioned had been subjected to slurs while using a bathroom. This month San Francisco joined Washington, New York, Philadelphia, Austin, Seattle and Santa Fe in requiring all businesses and city buildings to designate single-stall loos as all-gender.
The bigger battle, though, is over multi-stall restrooms and locker rooms, especially in schools. Title IX , an amendment tacked on to the Higher Education Act in 1972, says that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education programme or activity receiving federal financial assistance”. The Obama administration has interpreted this as meaning that transgender pupils must be allowed to use facilities for the gender with which they identify. In October it filed a legal brief in a federal appeals court backing the legal challenge of Gavin Grimm, a transgender boy, to the policy of his school in rural Virginia which bans him from using the boys’ toilets. On January 27th the judges will hear oral arguments in GG v. Gloucester County School Board. It is the first time a federal court will have to weigh up the question.
Correction: The original version of this article stated that a bill would require schools to provide separate facilities for transgender pupils; the bill would in fact make this optional.
