JURIST Guest Columnist Brian Eisner, St. John’s University School of Law Class of 2015, is the author of the eleventh article in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development. Eisner discusses the California’s School Success and Opportunity Act and transgender equality…Imagine you are a first grade boy. Growing up, you were not like other boys. Instead of wearing shorts and a tee shirt, you preferred the feel of a dress; when you went to play, you were more likely to play with Barbie than GI Joe; you even went so far as to tell your mother that you feel like a girl. In your mind and heart, you are a girl. Although your parents are, at first, disconcerted with your behavior, they soon begin to accept your feelings as natural and treat you as a girl.

Then you enter public school. Unfortunately, your school district does not feel the same way about your desire to be treated like a girl. Instead of allowing you to express yourself as a girl, the school decides to force you to use the bathroom associated with your birth certificate. When you complain and ask to use the girl’s bathroom they respond by allowing you to use the faculty bathroom: a single-person bathroom. But, this singles you out because you are the only student using this bathroom; thus, by allowing you access to the staff bathroom the school has made it clear you are different than all the other children and must be treated as such.

The above story is not unique to any one individual, but rather is one of the shared experiences by children who identify as transgender, which means that the gender with which they identify does not match the sexual identity assigned by their birth certificate.

In California, Governor Jerry Brown signed the School Success and Opportunity Act, which allows any child in K-12 public schools to use the bathroom, locker room and participate on sports teams of their gender identity, irrespective of what their birth certificate says that their sex is. In this context, gender identity is a person’s private sense of gender. However, since its inception, the law has been under constant attack from groups who are adamantly against allowing transgendered individuals to use the bathroom of their gender identity. While so far their efforts through the ballot initiative system have failed to garner enough verifiable signatures to put it on the ballot, a more insidious challenge is about to be undertaken by these groups. They have begun to solicit potential plaintiffs for lawsuits based on the alleged infringement of the right to privacy of the objecting children who would share the same bathroom with the transgendered children. And the problem is that based on the current judicial landscape these sorts of challenges have the power to overturn the law and force transgendered children to using the bathroom of their birth certificate sex. The reason is that many courts have concluded that the right to privacy includes the right to be free from the opposite sex when using the bathroom. Since there is no indication that the courts’ interpretation of this constitutional right will change, a great danger exists that the law will be declared unconstitutional.

If the law is declared unconstitutional, then transgender students in California will once again be forced to use the bathroom of their birth sex and not their gender identity. This will have dire consequences for transgender students because they will be forced to realize that they are different than other students and treated differently than them. Every time that a transgender student uses the bathroom he/she would be forced to realize that he/she is “abnormal that there was something so grotesque or unsafe about her that her very presence in a place as delicate as a bathroom was intolerable.” In essence, overturning this law would make an entire subsection of the student population feel like outcasts.

To make certain that the transgender student body is allowed the same freedoms as their non-transgender counterparts, society must begin to move to a more transgender inclusive model of bathrooms: the gender neutral bathroom. This model envisions bathrooms that consist of multiple stalls where people could “do their business” and then there would be a communal sink area. Anyone could use this bathroom because there would be nothing in the bathroom that would make it inherently made for one sex or gender (like a urinal).

These sorts of bathrooms would be in step with society’s direction. For instance, many colleges, such as Grinnell College in Iowa, have begun to install gender-neutral bathrooms. Further support comes from new guidelines promulgated by the Department of Education on how teachers and administrators should deal with gender identity in public schools. In Massachusetts, the Department of Education recently established guidelines [PDF] that schools should follow to ensure students can access bathrooms that match their gender identity. Connecticut also passed [PDF] similar guidelines.

There is no question that a change to the structure of bathrooms (a closely held societal norm) would have its opponents, especially when it comes to implementation in public schools. Many would argue that younger children would be uncomfortable using the bathroom with children of the opposite sex and gender because they are at an age where the opposite sex is still seen as “having cooties.” However, this concern is ameliorated when looking at how children begin to use bathrooms when they are growing up. Normally, a child using public bathrooms will be accompanied by a parent. When the parent of the same sex is not available, the child will generally follow the parent of the opposite sex into the “opposite” bathroom. Thus, children who are younger will have already been exposed to bathrooms of the opposite sex and this can be used as a learning experience for the child. The parents can talk to their children and help them understand that a bathroom is simply a place to “do their business” and not for anything else. Much like other public spaces that are used, early implementation and parental teaching will help the child to adjust.

Even further, opponents would argue that as children aged and began to go through the hormonal changes associated with manhood and womanhood, these bathrooms would be problematic because putting both sexes and genders in the same location could lead to misuse of the bathroom and potential feelings of discomfort. This misuse could include increases in sexual harassment, while the discomfort could come from situations such as when a girl begins to menstruate when a male is in the bathroom. However, this potential problem is combated by the structure and early implementation of the bathrooms. Since the gender-neutral bathrooms would be implemented when the students were young, as they grow older, the bathrooms would lose their novelty and would simply be a place to do their business. Any wrongdoing that would occur in the bathroom would be monitored the same way as if there was wrongdoing now: it would be reported by a fellow student who observed the wrongdoing, and the offender would be reprimanded and hopefully taught to abide by the rules. If a particular student continues to use the bathroom in inappropriate ways (i.e. as a means for easy access to the opposite sex in order to harass them), then he/she should be punished and not the transgender students who only want to use the bathroom that allows the full expression of the person that they are inside.

Also, the structure of the bathroom should help people feel more comfortable. Even in a situation where a girl begins to menstruate or might feel uncomfortable with a male in the bathroom, the fact that there are stalls gives a modicum of privacy to the individual. Since this is a public bathroom the students would not have complete privacy, but only the privacy that is found in bathrooms now. Thus, a student who is uncomfortable would have to be dealt with along the same lines as a student who is uncomfortable in the bathroom around other people of the same sex now. They would be given the option to use a faculty bathroom or made to feel comfortable through education and the like.

The California law is necessary to protect transgender students from harassment and to allow them to feel comfortable in a school setting. Unfortunately, there is a good probability that the law will be overturned on right to privacy grounds. To make certain that transgender students are given the equality they seek, it is necessary for society to do what the courts cannot: create bathrooms that are gender neutral. It is only in this way that equality will be achieved.

Brian Eisner earned a B.A. in English/Comparative Literature/Psychology from Binghamton University. Brian is a Juris Doctor candidate at St. John’s University School of Law. Brian is currently a law clerk for the Law Office of Joel S. Charleston. Brian currently serves as Notes and Comments Editor for the Journal of Civil Rights and Economic Development.

Suggested citation: Brian Eisner, “The Civil Rights Issue of Our Time”: Transgender Equality and the Right to Choose Your Bathroom, JURIST – Student Commentary, Feb. 2, 2015, http://jurist.org/student/2015/02/brian-eisner-gender-equality.php.