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Gender Identity: Who Gets To Use Public Restrooms?

In oh-so-progressive Montgomery County, where it's illegal to smoke or use trans fats in restaurants, there are, you will be relieved to learn, some limits to government's desire to legislate behavior. Just days before a vote on making it legal for certain men to use women's locker rooms and restrooms, the County Council has backed off.

Council members will still proceed Tuesday with a move to ban discrimination against transgender people in housing, employment and taxi service. But a provision to let people whose gender identity conflicts with their physical equipment use the public restrooms of their choice was withdrawn Friday.

Given the social stigma associated with cross-dressing or changing gender, tweaking the discrimination law to protect people based on gender identity seems fair enough. Many transsexuals are fired as soon as their employers learn they plan to change genders, according to advocates for sexual minorities. Thirteen states have passed such laws in recent years.

But council member Duchy Trachtenberg had wanted Montgomery to go further -- allowing, for example, a biological male with a female self-image to use the women's restroom, "regardless of whether the individual has provided documentation of their gender identity," as the county attorney put it.

Trachtenberg (D-At Large) told me she came into office with "a number of social initiatives I wanted to address in my four years." Last spring, she led the way as Montgomery banned trans fats. This fall, with encouragement from Dana Beyer, a retired eye surgeon who serves as Trachtenberg's chief of staff and is a transgender woman, the council member decided that "adding a protected class for transgendered individuals is common sense."

Her bill "really isn't radical," Trachtenberg said. But radical is precisely what opponents -- mainly from a parents group formed earlier to fight the county's sex education curriculum -- called it. Trachtenberg dismissed the protesters as a "small group of ideologically driven individuals" who "don't speak for the majority."

But when push came to shove, the council yielded to the protests, which by late last week included radio ads alerting the public to the bathrooms clause.

"The County Council should not force or legislate shared nudity," said Ruth Jacobs, a Rockville physician who called the transgender proposal a "sweeping entitlement bill protecting cross-dressers and transvestites . . . but not protecting Montgomery County residents from unforeseen consequences. Any XY male just wanting to visit the women's bathrooms or locker rooms would by this bill's definition be exhibiting transgender behavior and could be protected."

There's always some hypersensitivity when public policy reaches into the bathroom. But when council member George L. Leventhal (D-At Large) wrote to a constituent that he could not "absolutely put to rest your concern that girls might find themselves in a locker room or dressing room in the presence of a person who expresses or asserts herself as a woman but who still has male genitals," the concerns of a small, conservative protest group blossomed into broader doubts about the council's values.

Trachtenberg insisted that it was "highly unlikely that a man who is transitioning to a woman state would go into a women's locker room and expose their bodies." Other council members noted that the county's Peeping Tom law would punish voyeurs who might seek to use a new anti-discrimination rule to justify being in the wrong place.

But the fact remained that Montgomery's ill-fated proposal to grant restroom access without conditions would have put the county at the far edge of transgender protections. Some states allow transgender people to switch to the other sex's restrooms only after they have completed genital surgery. Some allow transitioning people to change restrooms before surgery only if they can document their gender status with a court order, physician's letter or government identification.

Courts across the country have been skeptical of Trachtenberg's approach. Julienne -- formerly Justin -- Goins had started taking female hormones but had not undergone sexual transformation surgery when her employer told her to use either the men's room or a single-occupancy restroom. Goins refused to comply and, when her employer said she would be disciplined, she sued. The Minnesota Supreme Court ruled that there was no illegal discrimination because the bathroom restrictions were based on biological gender.

In September, a federal appeals court ruled that the Utah Transit Authority was within its rights to fire a bus driver, Krystal Etsitty, who was a biological male but was transitioning to female and had taken to using women's restrooms along her route. The transit authority invited the driver to reapply after her surgery but said Etsitty's use of women's rooms while in uniform created unacceptable liability for her employer.

Still, as late as Friday, Trachtenberg was insisting that Montgomery residents share her desires to be at the forefront of anti-discrimination efforts. "Change is difficult," she said. "I don't back down when a subject is controversial."

But the council, quite properly, did. Protecting people who are different, even when their very existence makes others uncomfortable, is the job of the law. But the restroom provision reached too far, putting the comfort of the few over the rights of the many. People who enter a locker room reserved for members of one sex have the right to expect that everyone in the room shares the same equipment.

By Marc Fisher |  November 11, 2007; 9:03 AM ET
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Mr. Fisher, I may not be transgendered, but I'm an intelligent person. The word "genitalia" is what you're looking for. Using the juvenile metaphor "equipment" expresses your discomfort with the situation, as does your confusing of gender identity with biological sex. I wouldn't want a person who appears to be a woman in my men's room, even if she still has the same genitalia as I. Those are private areas and are normally not shared in restrooms by people outside Congress. Regarding lockerrooms, I imagine that pre-operative transsexuals already do everything they can to hide their unusual genitalia. They're not transvestites, and they're not predators.

Posted by: jakemd | November 11, 2007 10:31 AM

hmmm ... so, the male who believes himself a female, and thus attracted to males, should not use the ladies' room but rather the men's room .... where the objects of his attraction are?

Posted by: something to think about | November 11, 2007 11:29 AM

It's easy to dismiss the needs of transgendered people in this context, and the point about hetero XY males who just want to be in the women's locker room is well taken. But what you are overlooking is that many people who identify as transgendered have a biological component to their identify. Many were born intersex to some extent; of these, several had their apparent gender selected for them as infants. (Some of these people identify as gay rather than intersex, and will never know their intersex status.) Many are not straight XX or XY. Some have the complete genitalia of both sexes. Are you suggesting that there is NO appropriate public facility for these folks? Some people believe homosexuality is "unnatural," but how can you use that term to describe people with hard physiological evidence of their intersex status? There are more of such folks then you may realize. This is the context in which the Council needs to frame their final decision.

Everyone has some prejudices, they say, and I'll reveal mine right here: Transgendered folks should use the women's facilities because they're a lot less likely to get beaten up there than in the men's.

Posted by: Vienna, VA | November 11, 2007 11:41 AM

I'm glad the County Council is retracting the portion of the bill concerning restrooms. How would women and children figure out whether a man in a woman's room was a transgender, a peeping tom, a rapist or a pedophile?

Posted by: Mongtomery County | November 11, 2007 11:58 AM

... a pooping tom.

Posted by: more likely | November 11, 2007 1:03 PM

Duchy Trachtenberg,

Child predators salute you everywhere.
Who knew how easy Montgomery County would make it to prey on young girls (or boys)?

Posted by: Sarah | November 11, 2007 1:39 PM

This sentence is ridiculous:
"But the restroom provision reached too far, putting the comfort of the few over the rights of the many."

Do you really think transgendered people are comfortable using either bathroom? You're a pretty liberal guy, trying to be open minded, and the discomfort you have with the idea that someone with a penis might use the women's restroom pervades this entire blog post. Plenty of people less tolerant than you use public restrooms, so you've got to expect that transgendered people are going to be stared at, possibly confronted, or yes, beaten up, no matter *which* restroom they use.

Also, since when do people have an actual right to share restrooms only with people who have similar looking genitals?

The sentence should be rephrased, "The restroom provision put the safety of the few over the comfort of the many."

Posted by: sasha | November 11, 2007 3:05 PM

"Change is difficult," she said. "I don't back down when a subject is controversial."
Ah, Duchy Trachtenberg! With closed minded friends like these, the Gay and Lesbian community does not need to look for enemies. Ms Dumb Dumb needs to move into DC where her silliness will fit right in.

Posted by: Stand or Sit | November 11, 2007 3:50 PM

Just make all restrooms coed. Geesh. Then you dont have problems with members of Congress having a wide chance, And nothing brightens your day more than seeing a pre op use the urinal next to you.
Come on give Bill Oreilly something to really get upset about!

Posted by: Anonymous | November 11, 2007 5:09 PM

I don't know which is more ridiculous: Councilmember Trachtenberg introducing this bill in the first place or Marc Fisher getting led around by the nose by the kooky homophobes who want to scare everybody.

Posted by: just wondering | November 11, 2007 5:27 PM

I have no problem with true male to female transsexuals using women's toilets or women's locker rooms. I accept them as women who were born in male bodies (or perhaps in sexually ambiguous bodies). If a male to female has progressed to the point where she is wearing women's clothing on a regular basis, fine, let her in regardless of whether she has had surgery or hormone treatment. We can live with the risk of the occasional voyeuristic heterosexual transvestite. In fact, we already do.

However, there are serious practical problems with allowing any man who simply claims he identifies with women to use private, female only facilities. The poster who wrote that women would have no way of knowing if a man were a rapist or a voyeur is right. Women do have a right to be comfortable in toilets and locker rooms, and they have a right to feel safe there. This proposed ordinance is poorly written, poorly defended, and a disservice to all.

Posted by: kaleberg | November 11, 2007 6:00 PM

One thing some people are overlooking is a simple fact: not every trans person has the money for a sex change operation or continuous hormone treatment. So limiting cross-sexual restroom privileges to post-ops discriminates against trans people who can't afford surgery.

Posted by: Patty | November 11, 2007 11:21 PM

Actually, sexual orientation does not change, so don't worry.

Posted by: bruce | November 11, 2007 11:33 PM

The lunatics have taken over the asylum in Montgomery County. The County Council was considering a bill to allow a man to use the ladies room if he wants to be or imagines himself to be a woman? The County Council must be doing some serious drugs!

Posted by: concernedcitizen | November 11, 2007 11:41 PM

Well, I have liberated more than one men's room--not because I am transgendered, but either because it was close or because the women's room had a way too long line next to the empty men's room. That's what happens when a female dominated profession has a convention.

I don't get what the big deal is.

Posted by: liberator | November 12, 2007 9:34 AM

concernedcitizen: it's just her. The rest of the Council is left of center but generally appear to be reasonable people.

Duchy Trachtenberg, on the other hand, makes me actually wish Howard Denis would run for At Large. Cuckoo pants. It's like I'm back in Berkeley.

Posted by: somebody else run | November 12, 2007 11:03 AM

I am TS, though I am female-to-male, not male-to-female.

Yes, using the women's room is a lot more comfortable for most MtF's, especially as their transition progresses and they no longer look male.

Think about it... How many people - esp in the women's room, which this article is focused on, really pay attention to anyone else unrinating? There are stalls and stall doors for a reason.

As for standing at urinals in the men's room, there are devices that allow female-bodies people to urinate standing up.

My point is that, unless you are snooping under the stalls (which would make you the pervert), there is no way to know what genitalia the person in the next stall has.

Oh, and you wouldn't believe how easy it can be to use a locker room and hide your gender...

Posted by: I am... | November 13, 2007 3:26 PM

I can't believe that no one has taken issue with the fact that saying transgender people using bathrooms are more likely to be a sexual predator! There is no evidence of this?! So people aren't concerned people will sneak in now but they will be suddenly afraid if someone transgendered has access to the facilities? Rediculous. The implications that transgender people are more likely to be sexual predators is rediculous. It needs to be corrected. If a pervert wants to go into a bathroom and misbehave, they'll do it. They aren't going to wait for a civil rights law to go into effect and then try to use that as cover.

Get real.

Posted by: Kat | November 13, 2007 6:16 PM

I agree with everybody above this post, but what scares me the most is that some places now have cameras down the hall of the rest/locker rooms making it impossible to go in the ladies room. I think I will stay home in my closet and change comfortable.

Posted by: clean truck driver | November 14, 2007 2:05 PM

I have been a crossdresser in New York City for over 20 years. I would never, ever, risk being caught or beaten up by using a men's restroom. I have always used a women's restroom and have never had any problems. Even if someone maybe suspicious, nobody is going to question a person wearing a dress. Sure I have had weird looks but for the most part I get a cheery smile.

Posted by: sandratvnyc | December 10, 2007 6:47 PM

I, personally, think that it was the right thing for County Council Members to yield to the protests regarding the bill. I would not so opposed towards the bill if allowed trans genders to use restrooms, locker rooms, etc. of the opposite sex of their biological one if, and only if, they had surgery on their genitals. I can't speak for anyone else, but I would not like a trans gender person using the women's locker room unless they have female genitalia. Women change there, take showers there, sometimes out in the open because they are supposed to be around other females, not a female with male genitals! Most women use stalls to change, but some don't, and I don't think I would appreciate having a trans gender with male genitalia looking around a women's locker room...

Posted by: Sarah | December 29, 2007 2:50 AM

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