Commentary

9 bathroom myths about trans people debunked

9 bathroom myths about trans people debunked
Right wing politicians and commentators have trotted out all sorts of reasons why discriminating against transgender people should be perfectly legal. The problem is, absolutely none of them stand up to any sort of scrutiny. Or rational thought for that matter.

  1. Right Wing Talking Point: Including transgender people under Title VII and IX is novel.

Nope. Federal Courts have been interpreting Title IX to include transgender since 1997 in the case of Miles vs. New York University.  Similarly, in 2000 Federal Courts began considering Title VII to include transgender people in the case of Rosa v. Park West Bank. Since 2004 and the 6th Circuit decision in Smith v. Barnes nearly every employment decision has ruled that transgender people are protected by Title VII, and essentially unanimously since 2008. This is why none of the cases cited in North Carolina’s lawsuit against the federal government cite a post-2008 court ruling that Title VII doesn’t protect transgender people.

However, the EEOC helpfully (trolled) provided a list of dozens of rulings since 2008 supporting Title VII and IX p

  1. Right Wing Talking Point: It wasn’t the original intent of lawmakers to protect transgender people when they wrote Title VII and Title IX.

This is both irrelevant and disingenuous. The Supreme Court decided in 1998’s Oncale v. Sundowner Offsore that protections under “sex” in Title VII of the 1964 Civil Rights Act must be considered more  broadly than just the original intent of the legislators who wrote it.  It can’t be argued that this was some “liberal overreach by unelected activist judges,” either; the late Antonin Scalia wrote the decision of a unanimous court, and Justice Thomas concurred.

  1. Right Wing Talking Point: Congress should settle the issue.

North Carolina Governor Pat McCrory demanded that Congress “bring clarity” to the issue of Title VII and Title IX as they relate to LGBT people.

Is he talking about the same Congress that rarely can be bothered to pass a budget these days? The body which has been setting records for lack of productivity for the past 10 years? Or is he ignoring the fact that there’s actually a bill (the Equality Act) to do exactly that which can’t even get a hearing in committee.

McCrory’s complimentary copy of Waiting for Godot, will arrive in the mail shortly.

  1. Right Wing Talking Point: This was overreach

The “Dear Colleague” letter is not “overreach” either.  It is guidance clarifying interpretation of Title IX and does not carry the force or effect of law, which is explicitly stated in it. The Department of Education and Department of Justice issued the letter as guidance because some schools (and elected officials) have questioned whether Title IX covers transgender people. Courts defer to agency interpretations of unclear laws which they are responsible for enforcing. This is known as the Auer doctrine, and based on the Supreme Court’s 1997 Auer v. Robbins decision.  As such, the “Dear Colleague” letter is guidance based on the case law described above, some of which pre-dates the Obama Administration by over a decade.

McCrory asked for clarification, and got it from the only agencies capable of actually doing anything. He just didn’t like the answer.

  1. Right Wing Talking Point: Let the states decide.

You know we’re talking about the south, right? Where 50 years after Loving v. Virginia republicans control everything, and 46% of them think interracial marriage should still be illegal, (only 30% believe it should be legal)? Where Alabama didn’t remove anti-miscegenation laws until 2001? And 11 states still have Jim Crow laws on the books? Where 12 years after Lawrence v. Texas, a dozen states still have anti-sodomy laws on the books?

So, given all of this, what makes anyone think that these states would come up with a solution that is constitutional?

  1. Right Wing Talking Point: We shouldn’t have to accommodate a tiny minority.

The most recent studies of transgender populations in the US found that .5 percent of the population identifies as transgender. Similarly, about .69 percent of the US population uses a wheelchair. However, unlike the Americans with Disabilities Act, accommodating transgender people usually requires nothing more than being willing to share space with someone.

It’s not that accommodating transgender people is difficult or costly.  It’s just that people who don’t want to do so don’t like transgender people on principle.

  1. Right Wing Talking Point: “Normal” people shouldn’t be made uncomfortable by sharing space with transgender people.

How would someone sound if they said they shouldn’t have to share bathrooms with black people? Or Jews? How about Mexicans? That would basically be the definition of racism, anti-Semitism, and nationalism. Then how is refusing to share space with transgender people not transphobia?

Want more proof this is a phobia?  Almost everyone has probably shared a bathroom with a transgender person at some point in their life, and never knew it. This implies that people are ok with sharing space with transgender people, as long as they don’t look gender non-conforming in some way. As such, opposition this isn’t about transgender people, so much as fear of a stereotype about transgender people. We see this evidenced in how many gender non-conforming (cisgender) women are being attacked and accosted.

Let’s be clear: this talking point is nothing more than a “nice” expression of an irrational bias against a stereotype of a class of people.

  1. Right Wing Talking Point: Sexual predators will exploit protections for transgender people.

Politifact busted this one. So did the Washington Post. There is no evidence that people have ever exploited transgender inclusive non-discrimination ordinances in the US to commit crimes.  They concluded: “We haven’t found any instances of criminals convicted of using transgender protections as cover in the United States. Neither have any left-wing groups or right-wing groups.”

Most mainstream media outlets, like the LA Times, Washington Post, and New York Times have concluded that this talking point is nothing more than fear mongering.

  1. Right Wing Talking Point: There’s nothing discriminatory about HB2: everyone can still use bathrooms in accordance with their birth gender.

The Supreme Court considered and rejected the exact same arguments in 1967 and 2015. In 1967, it was argued that everyone has the same right to marry people of their own race. In 2015 it was argued in Obergefell that everyone had the same right to marry someone of the opposite sex. In each case, it was decided that these were inferior options which interfered with the fundamental rights with the individuals involved.

Similarly, for transgender people the option of bathrooms which do not match the gender they live in, or a materially inferior alternate, interferes with their ability to function in society without a rational basis.

In other words, the courts didn’t buy it then, and they won’t buy it now.

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