You Can’t Have Your Bathroom And Use It Too!

“The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and with indignation that sudden changes and legislative interferences in cases affecting personal rights become jobs in the hands of enterprising and influential speculators and snares to the more industrious and less informed part of the community.”–James Madison, Federalist No. 44.

            In case any doubt to the contrary existed, Dan Patrick confirmed, by threat of special legislative session, that bathroom integrity is among the most important policy issues in Texas . . . at least for now. Aimed to combat the threat of discomfort that genital-appropriate-students may experience by sharing a bathroom with persons dissimilarly endowed, and the more speculative, and easily controllable, threat of rogue perverts using gender identity as a voyeuristic ploy, the Bathroom Bill promises bathroom integrity to genital-appropriate males and females. For those non-genital-appropriate males and females, the bill promises that they can find the nearest stand alone potty, including using a teacher’s bathroom, to relieve themselves in quiet and solitary confinement.    

            Whatever the Bathroom Bill proposes to gain in bathroom integrity or security, however, it loses in human dignity and legal equality. On the integrity side, the bill treats transgendered persons as outcasts, as opposed to human beings and citizens entitled to the same dignity and respect afforded every other citizen. On the security side, the bill does greater direct and certain harm to transgendered students than it does protecting students generally. As for legal equality, the bill targets transgendered students and banishes them from traditional public school restrooms, which may constitute an unconstitutional bill of attainder.

            A.       Bathroom Integrity and Equal Dignity and Respect

            Most people can identify or sympathize with proponents of rules that clearly segregate restrooms according to gender. There is a sense of comfort that comes with gender-segregated restrooms for some people. This comfort may stem primarily from being surrounded by what is familiar.

When it comes to private establishments and private individuals, as opposed to government buildings and public figures, the decision to accommodate patrons’ comfort might not sit well with transgendered patrons, and might even invite rebuke. But the sting of being relegated to a separate restroom from all other males and females can be met with an equal sting to the private establishment by taking one’s business elsewhere. One could also stage a boycott of the private establishment. Lost profits have a way of motivating a change in policy.   

When the State, on the other hand, attempts to accommodate the comfort of one group of citizens over another, with respect to restrooms, or anything else for that matter, the sting of being relegated by law to a separate facility from all other males and females cannot be matched against the government. One cannot just take his or her business elsewhere. Sure, one might protest or boycott, but unlike with private business, where lost profits motivate changed policies, government does not experience lost profits, at least not in the same way as a private business—private businesses cannot force people to purchase or use their goods or services like government can. Further, even if one were to enlist others to boycott the government, their efforts would prove futile unless they first engaged in a life-long project of dismembering gerrymandered districts and enacting public policies that combat political pathologies. Lastly, unlike with a private business, a public pronouncement by the State that one group of citizens is too different to join other males or females is an official stigma upon transgendered students—one that will follow them throughout the State.

In Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al., the United States Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment to the United States Constitution to extend the protection of certain fundamental liberties—“life, liberty, and “property”—to “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Throughout the opinion, Justice Kennedy intimately tied human dignity to legal impositions. From the law of coverture—a legal doctrine that treated a married, heterosexual couple as a single, male-centric entity—to criminal laws against homosexual intimacy, Justice Kennedy submitted that the legal stance toward women and homosexuals informed the way other citizens viewed them, and how they (women and homosexuals) even viewed themselves, i.e., as something less than men, in the case of women, or less than everyone else, in the case of homosexuals.

            At the heart of the Obergefell opinion lies a compelling moral minimum owed by the State to each person within its jurisdiction: every citizen is entitled to the same dignity and respect afforded every other citizen by those who purport to govern them. 

                        Pardon the Interruption (an aside)

            Nothing that has been said so far should be read to mean that no limits whatsoever could be placed on what is commonly referred to as “identity politics.” Consider the case of Rachel Dolezal, for example. After she was outed as a white-woman, she announced that she identified as a black woman. Taking her identity seriously may mean that others recognize her for who she is, which includes how she identifies herself. But, does this mean that she should also benefit from Affirmative Action policies that were designed to ameliorate the effects of past injustices inflicted on black Americans? I think most people would answer no, and not without good reason.

To answer no, though, is to admit public limits to aspects of personal identification. The question becomes, then, whether admitting any public limits to personal identification also admits limits to the scope of one’s personal identity? If dignity is tied, in part, to how one identifies his or herself, then one might think government regulations which prohibit someone like Rachel Dolezal from enjoying the full protections and benefits afforded other people with whom she identifies in every respect would be an affront to her dignity and constitute unequal treatment. Practical politics takes over at this point—a line must be drawn in order to ensure Affirmative Action policies serve those persons whose historical connection to systematic and pervasive discrimination has stunted or stalled their economic, social, and political well being. 

Though the issue requires additional discussion and argumentation, which this blog alone cannot facilitate, I submit that transgender-identity issues are different from the Rachel Dolezal example in very significant ways. First, the reasons for excluding Rachel Dolezal from taking advantage of Affirmative Action policies center on historical political choices and actions which negatively impacted a group of people. But the reasons for excluding transgendered persons from using the restroom assigned to the gender with which they identify center on genetic luck—being born with a penis or vagina. And, second, the need to preserve a limited resource for the group for whom it was intended is not present with bathrooms.  

Before moving on, I will leave you with this tougher example: What about Caitlyn Jenner? Should a transgendered person who identifies as a female be able to take advantage of public policies designed to ameliorate past discrimination against women? The gender category of Women is race neutral and largely a matter of genetic luck. If so, why? If not, why? How does this inform your stance on the Bathroom Bill, if at all?

            B.       Bathroom Security and Personal Insecurity

Another reason in support of the Bathroom Bill centered on bathroom security. Some public officials preyed on public fear by suggesting that men might storm into female-only restrooms to objectify or even rape women if transgendered persons are allowed to use the gender-assigned restroom with which they identify.

There are three (likely more) reasons why the security argument fails on its face. First, the security issue does not address a problem with transgendered persons, but with rogue perverts or criminals taking advantage of a restroom policy. Second, and related to the first, to address the rogue pervert or criminal issue does not require a law which prohibits transgendered persons from using certain restrooms; in other words, there are less restrictive alternatives. Public schools are well equipped to have procedural and security checks in place to minimize the risk or threat of rogue perverts and criminals. Some such procedural checks may include documentation from a transgendered student and his or her parent with the student’s gender identification, coupled with other documentary proof—medical or otherwise—so that school faculty and staff will be able to identify those students who actually should and should not be in certain restrooms. 

Third, the Legislature does not have enough statistical data or proof to demonstrate a real risk to bathroom security by allowing transgendered students to use the gender-assigned restroom with which they identify. We should be very wary about allowing the Legislature to create a problem out of thin air, for fear that one day that problem may be with you and you may have no recourse. This brings us to the final issue.

            C.       Bills of Attainder

             

            The Bathroom Bill will likely be met with litigation. Most people should be or will be familiar with the equal protection legal arguments that will arise (one such argument was raised above in the Obergefell discussion). The bill might also constitute an unconstitutional Bill of Attainder, though the argument is not as direct as equal protection.

            Article 1, sections 9 and 10, of the United States Constitution, prohibit federal and state governments, respectively, from enacting bills of attainder. A bill of attainder is an official rule that directs punishment of a particular person or group. Alexander Hamilton best articulated the concerns addressed by the prohibition against bills of attainder:

“Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions by letting into the government principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, disfranchisement, and banishment by acts of the legislature. The dangerous consequences of this power are manifest. If the legislature . . . may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government would be a mockery of common sense.”

The United States Supreme Court interpreted the prohibition against bills of attainder to apply to “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.” United States v. Lovett, 328 U.S. 303, 315 (1946). The Court also broadly construes what constitutes “punishment” within the prohibition’s parameters. As far back as 1810, the Court exclaimed that a “bill of attainder may affect the life of an individual, or may confiscate property, or may do both.” Fletcher v. Peck, 10 U.S. 87, 138 (1810). More recently, the Court made clear that punishment includes “imprisonment, banishment, and the punitive confiscation of property by the sovereign” as well as “legislative enactment[s] barring designated individuals or groups from participation in specified employments or vocations, a mode of punishment commonly employed against those legislatively banded as disloyal.” Nixon v. Administrator of General Services, 433 U.S. 425, 474 (1977).

Now, the legislation typically must identify a particular person or easily ascertainable group. For example, in United States v. Brown, 381 U.S. 437 (1965), the Supreme Court held unconstitutional a law that prohibited Communist Party members from serving as labor union officers or managers. The Court reasoned that the law constituted a bill of attainder, as it identified specific individuals, Communist Party members, and punished them by excluding them from holding union positions.

But if the legislation reads as a general prohibition that does not specify any individual(s) or group, the question arises whether courts should look beyond the words of the legislation to the underlying intent behind the bill. Courts have shown themselves more and more willing to look beyond the text when it comes to discriminatory intent.

So, is the Bathroom Bill, once enacted, a bill of attainder? The bill is directed at “a student who does not wish to use the facilities designated for use or commonly used by persons of the student’s biological sex.” This language is likely sufficient to demonstrate that it is directed to transgendered students specifically. Even if neutrally read, there is enough legislative history, courtesy of Dan Patrick and others, to show that the bill is directed at transgendered students. And, the bill targets a specific subset (students who do not wish to use the restroom that corresponds to his or her biological sex) of a general group (students).

Will the legislative act punish transgendered students? Broadly construing “punishment,” the bill excludes transgendered students from using restrooms openly available to all other students and relegates transgendered students to separate facilities. This obviously negatively “affects the life” of transgendered students, and excluding the student from designated student facilities on the basis of the transgendered students’ identity may comfortably sit within the definition of punishment for purposes of the prohibition against bills of attainder.

Recall that one of the underlying rationales behind the Bathroom Bill was to ensure bathroom security. Taking this purpose seriously, the bill “punishes,” without a trial, transgendered students for something that no transgendered student has done. Criminal laws are already in place to punish any person, regardless of race, gender, sexuality, religion, or political affiliation, who sexually assaults another person. Should not those laws coupled with subsequent punishment following a trial be sufficient to deter the conduct the Legislature purports to be concerned with regarding the Bathroom Bill? Also, as argued above, there are less restrictive alternatives available to public schools to minimize the risks or threats raised by the Legislature.

Final Thoughts

Mindful that there are no easy answers to many of the issues raised by the Bathroom Bill, and certainly no answer that will satisfy everyone, everyone should at minimum seriously question whether a statewide prohibition is the appropriate response to a problem that, by all accounts, is largely hypothetical. Granted, there are serious concerns raised by proponents of the Bathroom Bill that cannot lightly be dismissed. The comfort and privacy concerns of female students whose gender corresponds to their biological sex are valid concerns. And, the normative stance and mores of a given community deserve respectful attention. These concerns should be addressed by each particular school district, because they are best equipped to address the specific concerns of the local community and best equipped to address the needs of the students with whom school faculty and staff have direct contact and intimate knowledge.