Dr. Jillian T. Weiss

The Potty: An Argument Against ENDA? (Part IV)

Filed By Dr. Jillian T. Weiss | October 04, 2009 7:00 PM | comments

Filed in: Politics, Politics
Tags: employment discrimination, Employment Non-Discrimination Act, ENDA, gender identity, transgender

A major objection to gender identity protections in ENDA is that it will cover transgender people, and where will they go to the bathroom?

As odd as it might seem to argue that an entire class of people should go jobless because we can't figure out where they will go to the bathroom, the power of the objection should not be underestimated.

Its power is not so much based on the actual practicalities of figuring out "which bathroom?" -- which is a fairly simple problem with a fairly simple solution. It is more directed to concerns rooted in the perpetuation of gender segregation and transphobia. Should these concerns dictate that transgender people cannot be employed? Clearly, the answer is no.

At one time, pretty much everything was largely sex segregrated. Men went out into the public marketplace to work and make purchases, and women stayed at home and worked in the company of other women. When the Industrial Revolution came, employers mostly employed men as workers, with the exception of a few industries, where the workers were all women. Men had their own private clubs and societies and bars where they could spend a pleasant evening, and women were not allowed as members. Since 1964, when it became illegal in this country to discriminate based on gender, some industries have become increasingly feminized, though there are relatively few women in the C-suite as leaders of industry. The idea that women should be segregated from men in public accommodations, in politics, in education, and in jobs has gone the way of the horse and buggy.

The only vestige of this sex segregation left is the public bathroom. While there are many places that no longer separate their public bathrooms by sex, as in some US colleges and in many places in Europe, it is a dear old tradition at this point, and a lot of people like it. But that shouldn't prevent me from getting a job.

There are a number of variations on the bathroom argument. The business-y "I'm-not-transphobic" ones refer to concerns about ambiguity of definitions and accommodation costs associated with building separate bathrooms for transgender workers. These, however, silently invoke far darker and nastier beasts thrashing about in our cultural subconscious, namely the fear that transgender people are crazed sex predators who will be unleashed against the helpless women of America. But let's deal with the easy objections first, shall we? It's already been a long day.

Accommodation Concerns

The bill itself specifically states in Section 8 the accommodation requirements of employers. It explicitly notes that nothing in the bill shall be construed to require the construction of new or additional facilities. Thus, employers will not have to undertake additional costs.

It should also be noted that the question of accommodating a transgender employee arises quite rarely. It is not as if millions of American employers are suddenly going to have to address thorny questions about bathroom accommodations when ENDA goes into effect. The number of openly transgender workers is very small, probably about 1 in 1000 workers at most in the large employer context, where transgender people have a higher degree of relative safety.

It's important to note that the bathroom issues have to be worked out regardless of whether there is a federal law like ENDA. 12 states have laws prohibiting discrimination against transgender workers, another dozen have court cases or executive orders prohibiting it, and about 100 cities have such laws as well. There's hasn't been a flood of litigation there over bathroom rules since the first law was put in place in 1975. In fact, there are four court opinions in the country on the subject to date. Four in 35 years. That's a pretty low track record.

I have worked with organizations that have particularly difficult issues involving showers and dressing rooms. These include major defense contractor Boeing, not the most hippy-dippy of environments, and The New York City Department of Homeless Services, which has sex-segregated facilities that accommodate men and women separately. A fairly easy and inexpensive solution has always been found. I have advocated the use of five criteria that allow employers to easily and quickly address situations that come up. These are outlined in my book, Transgender Workplace Diversity.

Transphobic Reactions

The more rarefied arguments depend, for their force, on the transphobia that often tinges the opposition to ENDA, and fear of violence against women. These fear-mongering arguments suggest that transgender people are sexual predators seeking to gain access to women's spaces. A slightly less virulent argument of this strain is that, while transgender people are not themselves sexual predators, there are others who will take advantage of the law. Sexual predators will "game the system," making a false claim of right to be present in the women's bathroom in order to prey on women and girls.

In an article several years ago, the following example was given by the Thomas More Law Center, a non-profit law firm working with the Gainesville group: "For example, Tampa Police arrested Robert Johnson in February 2008 for hanging out in the women's bathroom at 'Lifestyle Fitness' and watching women in an undressed state. The 'gender identity' category, which is unique to the City of Gainesville, would provide legal protection to a similar offender in Gainesville."

The Thomas More Law Center is mistaken in its assertion that the gender identity category is unique to Gainesville, as Key West, Monroe County, West Palm Beach and Largo have gender identity civil rights laws. More significantly, notably absent from the example given is any false claim of gender identity. The accused, a teenager, claimed that he had not realized that he had entered the women's room, and, afraid to be seen, had hidden until he worked up the courage to emerge, when he was spotted. He did not invent a new gender identity in order to work up a defense for being in a female dressing room.

The "Gaming the System" Argument

I saw this "gaming the system" argument when I trained 300 homeless shelter staff for the New York City Department of Homeless Services in 2007. In each training session of about 20 people, there were one or two staff members who loudly proclaimed that they were not prejudiced, but that they had long experience with the homeless, and some guys would do anything to get with the women. I patiently explained that there were several documented examples of transgender people being abused in the system, and no examples of women being abused by transgender people (or those falsely claiming to be). They had no information to the contrary, but refused to budge. After a while, I sensed that their arguments had nothing to do with logic, and were related to stereotypes and fears that I could not reach. Ultimately, I had to argue that I was there to inform them about the Department's policy, not to change their minds.

I have heard this objection about "gaming the system" not only in the homeless shelter environment, where violence and fears of violence are daily realities, but also in corporate and school settings in which violence had never occurred. I addressed this argument in my book:

"Bathrooms and dressing rooms bring up a question that I often get in my consulting practice: what if someone just pretends to have a female gender identity, but they do so falsely in order to obtain sexual gratification from the presence of females? This is of great concern for many people, who feel that, while they would like to respect a transgender employee's gender identity, to do so would conflict with the rights of female employees.

My answer is that, after a decade of work in this field, I have never heard of a situation where a person used a false claim of gender identity for that purpose. I have certainly heard of a few cases where a man dressed as a woman in order to commit a crime and escape detection (though of course, having heard of the cases, the attempts were obviously not successful). I have also heard about men committing crimes in women's bathrooms. But these cases all involved an attempt to escape notice, not to call attention to false claims about gender identity. More significantly, those cases were not spurred by the passage of a gender identity non-discrimination law.

Now what if, you think, what if some crafty male, spurred by this new law, were to come up with a lascivious plan to lurk in the women's restroom and then, when confronted by the police about his harassing behavior, claim that he was entitled to commit harassment because of his gender identity? The answer is that harassing behavior is not permitted regardless of one's gender. If I am standing in the women's restroom and the woman next to me puts her hand on my thigh, that's harassment, and it doesn't matter if she claims gender identity issues or not. "

The logic of the argument that allowing transgender people to use a bathroom consistent with their gender will create a risk to women's safety rests upon an assumption that those who are registered sex offenders will use false claims of gender identity disorder to gain access to women's spaces in order to commit sex crimes. This assumption is disproven by experience.

There are 13 states and a hundred cities with gender identity civil rights ordinances, beginning with Minneapolis in 1975. There are over 491,000 registered sex offenders in the U.S. There are over 270,000 sexual assaults per year in the U.S.

How many cases involving transgender people in bathrooms have there been in any year? Zero. How many false claims of gender identity transition have there been in order to commit sexual assault in any year? Zero.

Enough said.

For more on these topics, see Part I, which discusses concerns about pedophilia, Part II, which discusses fear of loss of religious freedom, another post discussing the possibility of a sudden flood of litigation and concerns about gay quotas, and Part III, discussing the transphobic "business necessity" argument.

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Regan DuCasse | October 4, 2009 7:20 PM

Since when would a man, for the purposes of committing a crime on a woman (even dressed as a woman) need to wait for ENDA to make a difference in doing so?

And vice versa?
How many people have really been confronted in a restroom in ways their conjecture has proven to be true?

If this is all they've got as an argument, it's so weak.
In plenty of establishments there are the sorts of restrooms marked separately, but they are in fact, SINGLE rooms.
If the women's loo is occupied and the other isn't. I use the other. And there haven't been any men who objected to seeing me leaving a restroom like that OR entering it.

So the gender and potty issue is settled in so many ways regardless of ENDA.
No excuses. None.

I’m glad I could help you with your research Dr. Weiss. I feel I did some good there.

I still like my solution.
If I can’t pee in the girls and I can’t pee in the boys then I’ll just pee in the nearest potted plant…hopefully its not a fake. They don’t like to be watered that much.

Angela Brightfeather | October 4, 2009 9:54 PM


Has anyone thought that past comments within the Transgender community itself are at least partly responsible for the degrading attitude of others? The argument against Transgender people being cast in the shadow of sexual offenders or perpetrators, oftgedn comes from other Transgenders?

I cannot count how many times that I have heard some people in the Transgender Community complain that Crossdressers and/or pre-op TS's have no right in the woman's room. Recent posts from some have pointed out that they think it is irresponsible and latently a sexual offence for pre-op TS's to be in the same dressing room, bathroom or workout room with genetic women or even post-op TS's for that matter.

When those who are working against ENDA on the basis of it being sexually threatening to women read some of the arguements also against it coming from our own Trans Community, our need to provide suitable defenses should be extended to those in our community who encourage the same ideas against us and actually outright call Transgender people fetishistic and/or deviant.

Cleaning up some of our own backyard "Transditionalists" might also be in order I think.

Um.. I was harassed for not appearing cis enough to be present in my bio appropriate restroom long before I was aware of transgender even being possible for me. Those women would freak out and I just thought they hated dykes.

I pass and have passed for most of my life one of the biggest plusses was my new ability to use the restroom in peace.

The naysayers are just trying to justify their bigotry. It is baseless so they make stuff up, we don't need to. We need to shut these hypocrites down. The sooner the better..

"I cannot count how many times that I have heard some people in the Transgender Community complain that Crossdressers and/or pre-op TS's have no right in the woman's room"

I think this kind of thing is mostly from internalized transphobia that has been thrust upon us by cisgender people. Blaming trans people for the negative perceptions thrust on them is blaming the victim. Degrading attitudes toward trans people existed long before that sort of infighting began--those degrading attitudes existed before there was even any real trans community in the first place.

Most trans people have grown up in a world that denies their existence and, outside of the trans community, lacks any language to describe their experiences. It is no surprise then that within the community there is going to be infighting to try to gain acceptance from the privileged.

It's really unfortunate, and trans people do need to be called out on their community prejudices (preferably by others in the community), but pointing the finger at trans people and saying it's their fault ignores the greater problem.

How interesting -- I just put up an article myself that speaks to this very issue, from a different view point:


This evil second wave(European) feminist Lesbian has absolutely no issues with women who are pre, post, un or uber using the Ladies' room.

With the stalls, it is realistically a non-issue except perhaps for the brainwashed christianist reactionaries.

Which is why I like this evil second waver :D

rikki mordhorst | October 5, 2009 1:28 AM

This is always the first issue that comes up. I transitioned on my job two weeks ago. When it was first announced that it would be happening the first thing that came up was what about the restroom? ,., even, what restroom is he going to use?

Well that was three weeks ago, after two weeks of reality no one is questioning or complaining. It actually has been a very good transition and I have been accepted by my coworkers very well.

Our office only has two restrooms so there isn't any option but to use the ladies room. And, it hasn't been a problem either.

justin johnson | October 5, 2009 6:59 AM

In Portland Oregon, A large number of public places have gone to uni-sex bathrooms, shared by men and women. I must admit that it was a bit weird for me the first time. However the fact is that it works and I am not familiar of any cases of abuse.

I mean, yeah, if I were a sexual predator I'd _totally_ let sex-segregated bathrooms stop me from walking into a women's restroom after a lady...

Let's game their irrational fears against them. "Sure, a sexual predator could game new laws to get into the women's restroom. All they'd have to do is take libido-crushing hormones and they'd be _all set_ to go pee with the ladies, easy-peasy, loosey-goosey, no-strings-attached. Oh. Except for the whole 'no more male libido' thing."

(Who realizes she's in the realm of hyperbole.)

Are the trees beautiful colors yet on Ramapo Valley Road? I was driving there about 6 weeks ago and thought of your columns, on my way back to Washington, D.C., where I hope all Bilerico readers are headed this weekend. The city is really psyched for the big March. I participated in the last two here in D.C, and they were great experiences. Of course, the passage of ENDA is one of the goals of the March. If you need a place to stay, hotel rates are really LOW this holiday weekend. There are amazing deals in every price category.

The only time I've even known I'm in the bathroom with a trans person is when I've known the guy. I realize that there can be a difference in passing - especially for MTF when first starting out - but the whole thing is such a non-issue if people would just f--king think about it. You're there to pee and leave. Who wants to hang out anyhow to see what everyone's genitals are?

Those pervs in the religious right, who else?

Seriously, it boggles the mind that a group so obsessed with other people's bits and what they do with them can call the rest of us 'perverts' while keeping a straight face.

Wonderful post, Dr. Weiss :)

I'm staying out of the discussion this time... ;-)


hee hee.

Sad part is, this one's comparatively safe. See, that one tiny group doesn't think ENDA covers their problems....

They think that since its about Gender Identity, that gender expression isn't covered, and have no understanding of the way the law works, so in their minds, the law won't cover folks they don't like.

Abby covered it really well below, and I wrote a special post, really for them, regarding it myself. They don't believe it, either.

Not as good as prescience is regarding the bathroom arguments and the power of social modesty, but still fair.

I wish I'd seen the character assassination piece they did on me -- the trackbacks it triggered before they removed it have some quotes that just really intrigue.

Ha... we can only hope they avoid this... I can't stand getting my inbox filled with batshit crazy hate anymore than it already is... UGH! I can't even TELL YOU how sick of batshit crazy I am.

I suspect you are about as sick as I am -- except you at least kinda sorta have the option to avoid it.

Me, I was stupid and walked right into them all and even if I never fought witht hem again, they'd never leave me alone.

They seem to think I have some sort of "import" or such, when, in the end, I have to quote from The Matrix:

"All I'm offering is the truth."

For me, the weakest part of the bathroom argument is the reality that a non-discrimination law can never provide a defense to the commission of a crime. It just can't happen. If you commit a crime, it doesn't matter whether it was legal for the perp to be where s/he is. It's still a crime! Yes, ENDA will allow transgender employees to use the restroom that matches their gender identity and expression, which may make a few people uncomfortable for a short time. If, however, an employee, trans or not, does something offensive or illegal in the restroom, they can be appropriately disciplined and/or prosecuted. ENDA's only impact in such situations is that the employer will be required to demonstrate that its actions were based on the employee's misconduct and was not merely an excuse for illegal discrimination.

So, as Jillian has so ably pointed out, ultimately, this argument panders to the fear-mongering and stereotypes about trans people and has no connection with reality, legal or otherwise.