It’s more than just bath­rooms

Cecil Whig - - OPINION - Ruth Mar­cus

— Into the over­heated, un­der­in­formed bath­room wars comes a well­timed in­tru­sion of san­ity in the form of a de­ci­sion by the 4th U.S. Cir­cuit Court of Ap­peals.

The court’s rul­ing in the case of Vir­ginia high-school ju­nior Gavin Grimm, a trans­gen­der boy, was cor­rect — and ground­break­ing, with im­pli­ca­tions be­yond the school set­ting. Yet the de­ci­sion also cre­ates the le­gal frame­work for sit­u­a­tions more chal­leng­ing — and per­haps more un­set­tling — than what should be the rou­tine mat­ter of let­ting peo­ple use their re­stroom of choice.

Grimm was born a girl but has changed his name, has un­der­gone hor­mone ther­apy, and iden­ti­fies as a boy. When Grimm and his mother told school of­fi­cials of this fact, they took it in stride. He used the boys’ re­stroom. No big deal.

Then the school board got in­volved, with com­mu­nity meet­ings that sunk to pre­dictable lev­els, with warn­ings of im­pend­ing sex­ual as­saults and straight boys don­ning dresses to in­fil­trate the girls’ bath­room.

So Grimm was barred from the boys’ bath­room and told to choose be­tween the girls’ fa­cil­i­ties or a new uni­sex re­stroom. For some stu­dents, the uni­sex al­ter­na­tive might have suf­ficed. To Grimm, it served as a daily re­minder of stigma and ex­clu­sion. If you scoff, re­mem­ber what it felt like to be an ado­les­cent, craving ac­cep­tance from your peers.

Grimm sued, claim­ing that the pol­icy vi­o­lated Ti­tle IX, the fed­eral law bar­ring ed­u­ca­tional in­sti­tu­tions from dis­crim­i­nat­ing on the ba­sis of sex. But what does sex mean in this con­text? Is it de­ter­mined ex­clu­sively by ref­er­ence to gen­i­talia (as the lower court con­cluded) or, more broadly, by what the stu­dent un­der­stands him­self or her­self to be?

The Ed­u­ca­tion De­part­ment has said schools “gen­er­ally must treat trans­gen­der stu­dents con­sis­tent with their gen­der iden­tity.” The ap­peals court, split­ting 2-to1, said that in­ter­pre­ta­tion was en­ti­tled to def­er­ence, and sent Grimm’s case back to the lower court, which also has be­fore it Grimm’s claim that his con­sti­tu­tional rights were vi­o­lated.

That seems like the right out­come — which puts me, at least on this is­sue, with Don­ald Trump. Com­ment­ing on North Carolina’s of­fen­sive — and, un­der the 4th Cir­cuit de­ci­sion, legally vul­ner­a­ble — bath­room law, Trump said Thurs­day that peo­ple should “use the bath­room they feel is ap­pro­pri­ate.”

In­deed. Just do your busi­ness. No peek­ing over uri­nal di­viders or un­der stalls to check on your neigh­bor’s bi­o­log­i­cal equip­ment. What in­va­sion of pri­vacy? What harm?

Here’s the more com­pli­cated part. Although Grimm dis­avowed in­ter­est in us­ing the boy’s locker room, the Ed­u­ca­tion De­part­ment’s rea­son­ing ap­plies in that set­ting too. Last year, the de­part­ment in­ter­vened on be­half of a trans­gen­der Illi­nois girl who said she wanted equal ac­cess to the girls’ locker room, and not to be rel­e­gated to a sep­a­rate fa­cil­ity. She wanted — as a mom, my heart goes out to her — “to be a girl like ev­ery other girl.”

The school district said it wor­ried that al­low­ing her into the locker rooms “would ex­pose fe­male stu­dents to be­ing ob­served in a state of un­dress by a bi­o­log­i­cally male in­di­vid­ual.” The case ended up be­ing set­tled with agree­ment in­volv­ing pri­vacy cur­tains and ac­com­mo­da­tions for any girls who wanted ad­di­tional pri­vacy pro­tec­tions.

Trans­gen­der rights lawyers say the re­al­ity of such en­coun­ters turns out to be less prob­lem­atic than the imag­ined in­tru­sions. “We’re talk­ing about peo­ple who also have their sense of pri­vacy and mod­esty, and who are not go­ing to want to have ev­ery­one see an anatom­i­cal part of them­selves that they feel should never have been there in the first place,” said ACLU lawyer Joshua Block, who rep­re­sented Grimm.

Still, the im­pli­ca­tions of re­quir­ing equal treat­ment lead to some chal­leng­ing sit­u­a­tions. If I had a trans­gen­der daugh­ter about to start col­lege, I’d want her to have the same op­por­tu­nity as ev­ery fresh­man to bond with her room­mate.

But if I were the mother of that room­mate — if my daugh­ter called and said her room­mate turned out to be a trans­gen­der girl — I have to ad­mit I’d be un­nerved. Even for peo­ple of good­will, the emer­gence of trans­gen­der rights is go­ing to take some ad­just­ing.

And then there is Ted Cruz, who sunk, typ­i­cally, to low­est-com­mon-de­nom­i­na­tor ug­li­ness. “Grown adult men — strangers — should not be alone in a bath­room with lit­tle girls,” he said, seiz­ing on Trump’s com­ments. As if be­ing trans­gen­der is equiv­a­lent to a propen­sity to prey on chil­dren. Of the same gen­der.

The country needs a ma­ture dis­cus­sion of this com­plex is­sue, and how to ac­com­mo­date com­pet­ing needs. In­stead, the cam­paign drives can­di­dates like Cruz to pan­der to the worst in­stincts of the ig­no­rant, and the basest of the base.

Ruth Mar­cus is a syn­di­cated colum­nist. Con­tact her at ruth­mar­cus@wash­post.com.

WASH­ING­TON

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