By: Russell Facente
Bostock v. Clayton County may seem for gay and trans equality what Brown v. Board of Ed. was for racial equality: a momentous (re)interpretation of statutory language and a substantial change in legal protection, albeit cabined to one sector of society. Brown did not overturn segregation everywhere, only in public education. Likewise, Bostock is limited to Title VII’s discrimination in employment. However, in his 107-page dissent in Bostock, Justice Alito warned of the “far-reaching consequences” (i.e. pandora’s box) that the decision created. His dissent excoriated the majority for leaving questions of equal rights left unanswered, most notably the place of Number 1 and Number 2 importance: the public bathroom.
A key case to answer this bathroom question is ripe for the Supreme Court to decide, as even the dissenting circuit judge on the case denied petitioners’ en banc petition. The case is Gavin Grimm v. Gloucester County School Board. It involves a transgender student’s equal protection right to use the bathroom of his sincerely held gender identity. The County argues that bathroom designations must “remain” grounded in biological sex—male or female—in order to protect the privacy rights of other bathroom users.
But the County’s distinction—shared by conservatives across the country—causes its own problems. Forget gender identity, what do they mean by biological sex? Is the County referring to visible sex organs only? Or is the county referring to genetics (i.e., chromosomes)? The County (and amici) seem to be arguing both. (Ironic considering they demand a binary distinction!)
External sex organs? The County argues that the existence of a “biological female” in the bathroom designated for “biological males” per se violates “the right to—and need for—bodily privacy.” They argue, as the Supreme Court has held, that no physical or verbal conflict must occur for there to be a privacy injury. First and foremost, bathrooms have enclosed stalls so under routine circumstances there is no way to see another’s genitals. But what about hermaphroditic individuals, or intersex individuals? Under the County’s rule, these individuals are in the same predicament as Grimm is today. Except (I assume) these individuals have been using public restrooms for decades without causing harm.
Chromosomal sex? In its petition for a hearing en banc, the County cites expert testimony that “gender identity has no effect on the body’s chromosomes.” Fine. But if the bathrooms are rigidly XX or XY, which bathroom do individuals with XXY chromosomes (1 in 500 “males”) or XX chromosomes but male genitalia (1 in 20,000 “males”) or XY chromosomes but female genitalia (1 in 20,000 “females”) use? In short, the XX vs. XY argument is outdated, overly simplistic, and borderline ignorant. It disregards what the last few decades of scientific study has found: Gene expression is more important to sexual identity. The complexity of gene expression, not just genetics, leads to sex characteristics and gender identity.
Lastly, under the County’s logic—and going out of the doored toilet stalls and into the open locker room—wouldn’t a transgender man (chromosomal XX person, having a penis after gender-reassignment surgery) cause more “harm” to women in the biological-women’s room than if they used the men’s room? So, their sex-assigned-at-birth standard fails. But if a transgender woman (XY chromosomes, vagina after surgery) uses the women’s bathroom, wouldn’t their “leery XY male eyeballs” still cause “harm” to naked women in that room? So, their visible-sex-organs standard fails as well.
But let’s put all the biological-science gobbledygook aside for a moment. Let’s look at the similarities between Grimm and the County’s hypothetical privacy-minded individual. I say hypothetical because the Fourth Circuit found that no boys complained about Grimm using the boys bathroom and also found privacy did not increase after Grimm was forbidden from using that bathroom. (In fact, the court found privacy increased with the County’s initial remedies.) Students, including Grimm, want to poop, shower, or just change out of sweaty gym clothes. No one wants to be leered at, ridiculed, or assaulted—by any person of any gender identity or any biological sex. The actual issue at bottom is that some number of individuals (of any gender, any biological sex, and cis or trans)—having been poorly raised by their parents or society, or suffering from mental issues—can cause harm in the “private” area of the public bathroom. Of course, the same—and worse—conduct occurs in parks, alleys, and most often (50%!) in the home.
In sum, if certiorari is granted by the Supreme Court, Gavin Grimm should prevail because it’s time to put down the scientifically outdated X – Y “rule” and start combating a particularly insidious culture of body shaming, whether manifested as insecurity in one’s own body compared to the “standard” or attacks on another person’s body. Perhaps Circuit Judge Floyd said it best: “How shallow a promise of equal protection that would not protect Grimm from the fantastical fears and unfounded prejudices of his adult community. It is time to move forward.” Less eloquently, I will implore people to stop worrying about someone else trying to do a Number 2, and just take care of your own business.
Law Journal for Social Justice 