Sexual Assault Investigation Could Doom Transgender Restroom Policies – Permitting Anatomical Males in Girl’s Toilets Creates “Hostile Environment”

WASHINGTON, DC, October 5, 2018 – The Office of Civil Rights at the Department of Education has determined that it has jurisdiction over, and will formally investigate, a legal complaint that a school district policy permitting transgender students to choose which restroom to use creates an illegal “hostile environment” for girls at the Decatur City School District.

The investigation as to whether a 5-year old kindergarten girl was sexually assaulted by a transgender anatomical male student because he was permitted to use the girls’ restroom could provide a vehicle for Education Secretary Betsy DeVos to continue reducing if not totally eliminating the policy – established under the Obama administration but now rescinded – which permitted all students claiming to be transgender to use restrooms inconsistent with their anatomy, says public interest law professor John Banzhaf.

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However, Banzhaf suggests that there are at least two ways schools can meet the interests of transgender students without endangering the safety and privacy of traditional female students in restrooms.

If the Department finds that permitting anatomical males to use female restrooms constitutes a hostile environment for girls because it creates a real fear of sexual assaults and/or an invasion of long established protections of privacy related to gender and restroom functions, it could force school districts to abandon policies which permit any student - especially ones without the kind of medical or other evidence typically required to demand a reasonable accommodation for a disability - to use any restroom he wishes.

A simple alternative would be to abandon the concept that any student claiming to be transgender should be able to use any restroom he chooses, and instead use the legal standard applied in other similar situations, and require only that a school must make a reasonable accommodation to the interests of a transgender student.

As an example of the principle, religious beliefs are protected under Title VII by requiring that there be a "reasonable accommodation" to them. A similar scope of protection is provided by various Religious Freedom Protection Acts [RFPA] which are designed to protect religious interests. Under them, deeply religious persons are not granted absolute freedom to practice their religious identity and beliefs no matter what the consequences; rather, they are entitled to no more than a reasonable accommodation to them.

As an even better example, a similar reasonableness standard is applied to protecting the interests of those with disabilities under the Americans With Disabilities Act [ADA], says Banzhaf. For example, their fundamental right to enter and use a building is protected, but handicapped students do not have an absolute right to use each and every exit or entrance which may be available to others. Instead, the school need only make a reasonable number of entrances accessible to wheelchair users, notes Banzhaf.

Similarly, a school does not have to provide wheelchair access to all classrooms to adequately protect the rights of students in wheelchairs if there are a sufficient number of wheelchair-accessible classrooms to accommodate the small percentage of wheelchair-using students who do need them. Using the same standard, providing enough single-user restrooms to reasonably satisfy the requirements of the tiny percentage of transgender students might adequately protect their rights without opening up all female restrooms to anatomical males who might simply claim to feel female.

Although most all-gender restrooms are designed, like those on airplanes, for only a single user, schools are beginning to experiment with all-gender restrooms which can be utilized by several males and females at the same time, notes Banzhaf, pointing to two new elementary schools in North Kansas City High School which feature them.

Having public restrooms that everyone can use addresses the concerns of transsexuals who object to being forced to use restrooms inconsistent with their gender identities, as well as of females who are often forced to wait on much longer lines to use restrooms, especially in theaters and sporting-event venues - a problem also being addressed by so-called potty parity laws and legal action.

Banzhaf has been called "The Father of Potty Parity" - also known as squatters' rights, restroom equity, and even porcelain proportionality where the proportion of outlets set aside for females in substantially greater than 50%. For example, a legal complaint Banzhaf filed helped force the U.S. House of Representatives to finally construct the first female restroom adjacent to the House floor so that female members are no longer "forced to urinate in a coffee cup" (as one report put it). Another Banzhaf potty parity legal complaint prompted the University of Michigan to provide additional restroom facilities for females when it renovated its Hill Auditorium.

Single-user restrooms, while they address the main restroom problem transgender people face, are more expensive and less efficient than traditional paired separate multi-user male and female restrooms, and retrofitting existing buildings with such single-seaters can be very expensive because it often involves running new water and sewage lines.

But there's a much simpler inexpensive method to protect the interests of transsexual users, who do not want to be forced to chose a restroom inconsistent with their gender identity, and at the same time to protect the interests of concerned female users, and it's being tested at Banzhaf's George Washington University Law School.

It satisfies the needs of transsexuals (as well as transvestites) - who dress in a manner inconsistent with their anatomical sex - to be able to have ready access to conveniently located restrooms without having to declare any particular gender preference or identity, while at the same time insuring that girls and women will not find anatomical males (transgender or otherwise) in their female restrooms.

It also avoids the need for schools and businesses to construct many more single-user all-gender restrooms (another popular solution) - which is expensive at best, and often near impossible in existing buildings - so it's a win, win, win situation.

What Banzhaf's GWU Law School has done is simply to re-designate what was formerly a typical men's restroom - with 3 urinals, 1 toilet in a stall, and 2 wash basins - as an all-gender restroom. Since the percentage of students who are transsexual is very small, most of the time the room functions as any other male restroom would, with many men able to urinate in urinals at the same time.

However any person - including not only transsexuals, but also transvestites, men who are bashful, have shy bladder syndrome (paruresis), etc. - can enter this restroom without exposing themselves to others or identifying with any particular gender, and relieve themselves in the privacy of the stall. Because typical women could even use this stall toilet if time is short and the lines at the nearby women's room are too long, both F2M and M2F transsexual students can relieve themselves in the room's toilet without revealing anything about their anatomical gender or gender identity.

Since in most buildings large male and female restrooms are usually paired close together, this system would open up almost half of all restrooms to transgender students so they would no longer have to search for - and then often travel far to - single-user all-gender restrooms which are often few and far between.

While GWU's system would occasionally expose typical male users to an anatomical female, most men seem unconcerned about any potential privacy invasion and, unlike the reverse situation, have little fear about suffering sexual assaults or even rape from anatomical females who are transgender males.

So if permitting anatomical males to use female restrooms is found to create an illegal hostile environment, school districts have at least two simple options which would still protect transgender students.

The first would be to require individual schools to make reasonable accommodations by providing a sufficient number of single-user restrooms at convenient locations.

The second would be converting all or most larger male restrooms into all-gender restrooms as the GWU Law School has done successfully.

Either would probably solve most of the problems many states are now facing, and do so without adversely affecting transsexuals, nor typical girls and women concerned about privacy and possible sexual assaults.