The battle over transgender rights stayed in the headlines this fall. A few weeks ago, The New York Times detailed the finding by federal education officials that an Illinois school district broke the law by not allowing a transgender student who identifies as a girl to change and shower in the girls’ locker room. And voters in Houston repealed a 2014 anti-discrimination measure, the Houston Equal Rights Ordinance (HERO), that prohibited bias in housing, employment, city contracting and business services on the basis of race, age, sexual orientation and gender identity. It was the last of these protected classes that caught all the flak.

Though the Houston ordinance had broad application, the repeal campaign focused exclusively on... bathroom issues. Labeling HERO “The Bathroom Ordinance,” opponents crafted a campaign with a stark message – “No Men in Women’s Bathrooms!” The slogan framed the referendum as a public-safety issue, both inciting and exploiting the fear that granting transgender people the right to use the bathroom of their choice would allow male sexual predators to gain entrance to women’s rooms by posing as women. “It [is] about protecting our grandmoms and our mothers and our wives and our sisters and our daughters,” asserted Texas Lt. Gov. Dan Patrick, who supported repeal. The campaign aired a disgraceful TV ad. Shot in black and white, with ominous background music, it shows a man entering into a women’s restroom and hiding in a stall. A little girl wearing a school backpack walks in. “Even registered sex offenders could follow young girls into the bathroom,” says the voiceover, “and if a business tried to stop them, they’d be fined.” The ad ends with the man entering the girl’s stall and shutting the door. “Stop Houston’s Bathroom Ordinance,” pleads the narrator. “It goes too far.”

Well, someone is going too far, that’s for sure. When politicians start scaremongering about bathrooms and Protecting Our Women, you should ready some very large grains of salt. How, exactly, would HERO facilitate sexual predation? If a predator wants to enter a women’s bathroom, he’ll do so, law or no law. Scurrilously conflating transgender identity with sexual predation, the ad echoed the old canard that gay men are disproportionately pedophilic. The anti-HERO campaign dishonestly deployed a lurid scare fantasy to further an ulterior political agenda – and succeeded. Big thumbs down.

The Illinois school case strikes me as more complicated. There, school officials sought to craft a compromise option, first offering to provide a separate facility for the trans girl’s use, then proposing that she change and shower in the girls’ locker room, behind a privacy curtain. The girl’s family rejected these proposals – and so did the feds. In a letter, the Education Department’s Office for Civil Rights informed the school district that it was violating Title IX’s ban on sex discrimination. “All students deserve the opportunity to participate equally in school programs and activities,” the Department’s assistant secretary for civil rights said. “Unfortunately, Township High School District 211 is not following the law because the district continues to deny a female student the right to use the girls’ locker room.”

Do opponents – many of them parents of girls at the school – have legitimate concerns? For preteens and teens, the years of emergent sexuality are confusing enough without a policy enforcing shared nakedness with a girl who has a penis. Furthermore, as several trans commenters on the Times website remarked, it’s hard to imagine why the girl’s parents would want to expose her to adverse remarks and intrusive staring, when very likely what she would desperately want and need is privacy. What’s clear is that people are talking right past one another. Proponents insist that any compromise will make trans teens feel ostracized, conveying the message that “there’s something wrong with them,” as a trans advocate on NPR’s On Point insisted recently. People on the other side are saying, I just don’t want biological boys in my girl’s locker room.

Which brings us to a fundamental question people are struggling with, and over: the blank assertion, in the letter from the feds, that the trans girl is “a female student.” We live in a society that deeply prizes individual liberty, self-creation, personal rights, and freedom of choice. These powerful forces tend to further the notion that all norms, categories and identities are social constructions, available for refashioning.  Are they? Is gender identity wholly a matter of self-declaration, of how we feel ourselves to be? What role, if any, does the biological play in determining who we are? These are not rhetorical questions. Rather they point to a clash of beliefs in our culture.

Bathrooms and locker rooms are contested spaces because they are definitional spaces; traditionally they are categorically binary, and that abrades a segment of the population that views such binary protocols as oppressive. And not only are locker rooms definitional, but intimately social as well. All in all they make for a red-hot ideological crucible. Diagnoses of “gender incongruence” notwithstanding, in the minds of many people, perhaps most people, there’s an inescapable way in which a locker room is not about what you feel, but what others see; not about your wiring, but your plumbing. The advocate on On Point asserted emphatically that young trans people should never be forced to controvert their identities; “the bathroom,” she said, “should match who they are.” Precisely, responds the other side.

In other words, as Bill Clinton would say, this depends on what your definition of “are” is.  The Houston slogan, “No Men in Women’s Bathrooms!,” cunningly double-tracked its attack, nominally raising the threat of male sexual predators claiming to be women while more subtly seeking to refute the gender politics of the trans movement by insisting that, well, trans women are really men. Interestingly, evidence suggests that some women, even politically progressive ones, feel this way, too. A fascinating article in the New York Times Magazine, “When Women Become Men at Wellesley”, charted the challenges faced by trans men at women’s colleges, and the controversy over whether it is appropriate for a woman who transitions to being male to continue at such a college. It’s surprising to get three-quarters of the way through the article before reading anything at all about trans women -- and then to learn that they have consistently been denied admission to women's colleges. The problem of trans men is obvious: they're self-identifying males at colleges with a mission of sisterhood. But one would think that trans women, who identify as women and have “become” women, would be welcome. Yet it's actually the opposite: trans women are rejected – which would seem to suggest that they are still viewed, in some fundamental way, as men – while the trans men profiled in the piece receive the understanding, among fellow students, that even though they might present as male, they are not “really” male. 

All of this is confusing, since the progressive discourse would seem to oppose such essentialism. The article – written from a point of view friendly to the trans movement -- ends up implicitly admitting that what people ultimately focus on is the biological gender we're born with... and in so doing, reinforces the "natural" categories that those who oppose the trans discourse insist on. This essentialism is not limited to gender. Rachel Dolezal seemed in some deep way to feel herself to be African-American, an abiding self-understanding that could be called race incongruence; what she received for her assertion of this self-understanding, for the most part, was rejection and even scorn. It’s clear that Americans’ intuitions and convictions on this topic are far from settled.  

“I’m glad Houston led tonight to end this constant political-correctness attack on what we know in our heart and our gut as Americans is not right,” exulted the Texas lieutenant governor after HERO was repealed. Well, one thing I know in my heart and gut is that mobilizing demagogic scare tactics against the already marginalized is not right. But does this mean that gender is wholly a matter of self-assertion, and nothing else? Because you say you are a girl or a boy, does that automatically make it so?  Should the government force me to agree? Can it?

“The rights of transgender students,” says the Times, “are emerging as a new cultural battle ground in public schools across the country.” Many Americans are rejoicing; many are balking. Bathrooms and locker rooms are contested places not because people truly fear being attacked in them, but because they feel their fundamental categories being attacked. What process of change are we in, exactly? Another Times article lays out various new designations for bathrooms at select colleges and museums:  “All Gender,” “Gender Neutral,” “Gender Inclusive;” and my favorite, from a D.C. restaurant, “Men, Women and the Rest of Us.”

Human beings, and human attitudes, are generally more malleable than most people think. Years ago in Germany I played on a rec-league basketball team and was startled to find on the first night that we shared a locker room with the coed volleyball team who used the gym immediately before us, so that they were undressing as we suited up. A big group of men and women, all changing and showering together. Hmmm. It took me a while, but I adjusted. People do. And perhaps younger people, even children, most readily of all. The Times article reports on an elementary school in San Francisco that has converted to “all-gender” bathrooms. “For too long in K through 12, we have asked every single student to conform to one or the other binary,” the principal is quoted as saying. “We had several students on the gender spectrum, and decided it was the right thing to do. It doesn’t affect other students.” Unsurprisingly, a lot of parents disagreed.

Are they on the wrong side of history? Just a few days ago, an 8000-word, front-page story in the Times, “How Kricket Nimmons Seized the Transgender Moment,” told the story of the transgender woman and former drag queen whose genital reconstruction was paid for by Medicaid – until recently, an impossibility. “The transgender movement has challenged society to break out of traditional ways of classifying gender,” the article asserted, “and to understand that gender identity does not always fit neatly into male and female boxes.”

That same morning at breakfast, I was half-listening to NPR’s Weekend Edition discuss the increasing prevalence of beards on men. The host chatted with her guest, a cultural historian, about how baseball players these days look Amish, and the significance of Paul Ryan’s beard, the first bearded speaker of the House in over a century. The guest said something about how we’re in an interesting moment, where men are experimenting more freely with notions and symbols of maleness. “Also,” he added, “a lot of people who are transitioning from one gender to another are looking at the importance of facial hair as a way of signaling that process.”

I was struck by the matter-of-fact nature of the comment, almost an afterthought. Matter-of-factness is a way of signaling, well, just that: a matter of fact, something sufficiently well established that it requires no elaboration or comment. “People who are transitioning from one gender to another.” The transgender moment engenders (sorry!) a new category. Get used to it, matter-of-factness tells us.

 Is gender a spectrum? I don’t mean traits, but gender itself? Is that an issue that has been – that can be – settled by science alone, and not by an ideological commitment one way or  another? Is self-assertion the be-all and end-all of gender identity? These questions are beyond my pay grade. But they are bound to continue provoking disagreement, and amid such conflict we’d all do well to proceed with humility, and when possible, with humor. When Barnard College decided to label all their restrooms “Gender Inclusive,” administrators issued a flier that announced, “We want everyone to be able to pee in peace.”

Amen to that.

Rand Richards Cooper is a contributing editor to Commonweal. His fiction has appeared in Harper’s, GQ, Esquire, the Atlantic, and many other magazines, as well as in Best American Short Stories. His novel, The Last to Go, was produced for television by ABC, and he has been a writer-in-residence at Amherst and Emerson colleges. 

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