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The Overdue Case Against Sex-Segregated Bathrooms

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The Overdue Case Against Sex-Segregated Bathrooms Laura Portuondot INTRODUCTION. ...................................... .............. 466 I. THE UNREVEALING HISTORY OF SEX-SEGREGATED BATHROOMS .............. 470 A. Origins ................................... ..... 471 B. Sex-Segregated Bathrooms and the ERA Debates ...... ...... 476 II. THE JURISPRUDENCE OF SEX-SEGREGATED BATHROOMS .. ............ 482 A. The Interest in Accommodating Biological Differences................483 B. The Interest in Protecting Privacy......... ................. 485 C. The Interest in Protecting Women's Safety .... ................... 491 III. THE LEGAL CASE AGAINST SEX-SEGREGATED BATHROOMS...................497 A. The Intermediate Scrutiny Standard .......... ........ 497 B. Applying Intermediate Scrutiny to the Judicially Asserted Interests ............................ .............. 499 1. Accommodating Biological Differences .......... .......... 499 2. Privacy . ..................................... 502 3. Safety ............................. .............. 510 IV. THE NORMATIVE CASE AGAINST SEX-SEGREGATED BATHROOMS .......... 514 A. When Separate May Be Equal: The Subordination Distinction.....514 B. Overcoming the Privacy Objection: Sex-Segregated Bathrooms Perpetuate Harmful Stereotypes ................ ...... 517 C. Overcoming the Safety Objection: Sex-Segregated Bathrooms Perpetuate Dangers for Women ................. ..... 521 f Yale Law School, J.D., expected 2018; Yale University, B.A., 2014. I am grateful and indebted to Professor Cary Franklin for her encouragement, edifying conversation, incisive feedback, and generous support through every stage of the writing process. I am also grateful to Professor Reva Siegel for helping with this Note's inception and for continuously inspiring my intellectual work through her own. I am grateful to the editors of the Yale Journal of Law and Feminism, particularly Emma Thurber Stone and Elise Wander, for their careful edits and suggestions. Finally, I would like to thank Christina Ford, Cody Taylor Knapp, Anthony Sampson, Helen White, and countless others for illuminating conversations about the ideas in this Note. Copyright C 2018 by the Yale Journal of Law and Feminism 466 Yale Journal of Law and Feminism [Vol. 29:465 D. Separate and Unequal: Sex-Segregated Bathrooms Subordinate Women's Needs ............................ .... 523 CONCLUSION ........................................................... 525 INTRODUCTION In 2002, Krystal Etsitty, a transgender woman, was fired from her job as a bus driver for her "intent to use women's public restrooms" along her route.' In 2007, she lost an employment discrimination suit because, the Tenth Circuit held, her employer's "concern" that "the use of women's public restrooms by a biological male could result in liability . .. constitute[d] a legitimate, nondiscriminatory reason" for termination.2 According to the Tenth Circuit, Etsitty was fired not because of her employer's discriminatory beliefs but instead because of her employer's-and potential female litigants'-"legitimate" commitment to sex-segregated bathrooms.3 Etsitty v. Utah Transit Authority highlights the obvious but often-overlooked reality that sex-segregated bathrooms are a but-for cause of the current transgender bathroom controversy. More importantly, the case illustrates a widespread assumption that sex-based bathroom segregation is not-and should not be-subject to legal change. Despite a recent rise in litigation surrounding transgender restroom access, sex segregation of bathrooms has never been the subject of direct legal challenge. Transgender litigants suing for bathroom access have thus far challenged the discriminatory enforcement of sex-segregation rather than the sex-segregation itself.4 Although LGBTQ activists have done significant and important legal advocacy challenging sex-segregated spaces,' the sex-segregation of bathrooms 1. Etsitty v. Utah Transit Auth., 502 F.3d 1215, 1224 (10th Cir. 2007). 2. Id. 3. Id. at 1225. 4. In an appeal to the Fourth Circuit, for example, transgender plaintiff Gavin Grimm was careful to distance himself from any challenges to sex-segregation, urging that "the question is not whether providing separate restrooms to boys and girls as a general matter serves the governmental interest in student privacy." Brief of Plaintiff-Appellant at 39, G.G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., 822 F.3d 709, 734 (4th Cir. 2016) (No. 15-2056). Indeed, the brief even conceded that sex- segregated restrooms may be justified. Id. at 41 ("[P]rivacy interests may justify separate but truly equal and nonstigmatizing restroom facilities for boys and girls ... ."). 5. This includes sports teams, identification laws, and other spheres. For one example of advocacy directly challenging enforcement of gender binaries, see Zzyym v. Kerry, 220 F. Supp. 3d 1106 (D. Colo. 2016), in which intersex activist Dana Zzyym along with Lambda Legal secured a favorable ruling from a district court after they challenged the State Department practice of requiring a binary "female" or "male" designation on passports. Transgender and gender nonconforming activists have also advocated for transgender access to binary spaces in other spheres, even if they have not directly challenged these binary spaces. For an introduction to the groundbreaking work many LGBTQ organizations have done to advocate for legal and social reform in the fraught sphere of gendered sports teams, see Helen J. Carrol, The Present Explosion of LGBT Sports, 34 LAW &INEQ. 499 (2016). 2018] Sex-SegregatedBathrooms 467 remains outside of the scope of constitutional concern for many legal advocates working for gender and sexual justice.6 This fact may be surprising, given that feminists have tirelessly targeted iistances of overt sex-based classification in our law for much of the last fifty years. Conservative opponents of transgender bathroom access would likely attribute this inconsistency to a desire on the part of feminists to preserve the benefits women receive from segregation. Opponents of liberalized bathroom laws tend not to frame their resistance as a desire to discriminate against gender- nonconforming people, but rather as a desire to protect women from men (or transgender women) who might take advantage of such liberalization.7 Perhaps, these opponents suggest, feminists have not sought to integrate bathrooms because they similarly believe that strict segregation protects women's privacy and safety.8 Such an explanation, however, has the unfortunate effect of pitting the rights of transgender individuals against the rights of cisgender9 women. 1o While there 6. For a description of the many tactics and considerations that transgender and other activists have explored for addressing the harms of sex-segregated bathrooms and sex segregation more generally, see Alex Faktor, Access and Exclusion, 7 J. Hum. SECURITY 10,16-19 (2011); id. at 16-17 ("There are diverse routes of addressing and approaching this issue. The aforementioned matrices of power [which perpetuate sex-segregated bathrooms] present-or rather, necessitate-multiple levels of activism. Some strategies include legal routes, grassroots activism, changing social attitudes, and various hybrids."). 7. For an example of the safety-based component of this argument, see Kaeley Triller Haver, A Rape Survivor Speaks Out Against Transgender Bathrooms, FEDERALIST, Nov. 23, 2015, http:// thefederalist.com/2015/11/23/a-rape-survivor-speaks-out-about-transgender-bathrooms [https:// perma.cc/JJJ8-WZTM] (describing how cisgender male predators will take advantage of liberal bathroom laws to sexually assault women). For an example of the privacy-based component of this argument, see Fr. Mark Hodges, Proposed Bathroom Bill Will Keep 'Transgender' Men Out of Girls' Bathrooms in Texas, LIFE SITE, Jan. 9, 2017, https://www.lifesitenews.com/news/public- reacts-to-texas-proposed-bathroom-privacy-law-with-praise-protests [https://perma.cc/38N6- SJTV] (describing the "Women's Privacy Act," a bill proposed by the Republican Lieutenant Governor, which would require people to use the restroom that matches their "biological sex" in order to protect women's privacy). This essay will discuss these arguments at length infra Part II.C. 8. Conservative media outlets have been eager to highlight that opposition to transgender bathroom access is an issue over which feminists and conservative groups can unite. See Christians & Feminists Team Up To Fight TransgenderBathroom Mandate, FOX NEWS INSIDER, Feb. 7, 2017, http://insider.foxnews.com/2017/02/07/tucker-carlson-tonight-christians-feminists-team-fight- transgender-bathroom-mandate [https://perma.cc/7GFD-W6V9]. 9. The term "cisgender" refers to individuals whose gender identity corresponds with the sex they had or were identified as having at birth. 10. This dichotomy between transgender people and women is misleading, first and foremost because it imagines that transgender women do not exist. Because the history of sex-segregated restrooms is rooted in the ideology of sexual difference, and because this Note intends to engage meaningfully with the arguments of skeptical readers, it will often refer to "men" and "women" as though they are binary and biologically distinct. However, it is equally important to remember that these categories are neither dichotomous nor exhaustive of possible gender identities. For a more complete introduction to gender terminology than can be attempted here, see SUSAN STRYKER, TRANSGENDER HISTORY
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