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 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.
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.
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 has rested, in some recent instances, upon a claim 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 claim 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.
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.