We must move discussion past bathroom talk

Ruth Marcus says implications of requiring equal treatment lead to some challenging — but not impossible — situations.

WASHINGTON — Into the overheated, underinformed bathroom wars comes a well-timed 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-to-1, 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-de-nominator 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. Marcus’ email address is ruthmarcus@washpost.com.