Leiden Law Blog

Bathroom wars and the role of agency in gender identity

Posted on by Sheila Varadan in Private Law , 1
Bathroom wars and the role of agency in gender identity

The war over bathroom access raged on in America last week when the Trump administration announced it would not support the right of students to use bathrooms corresponding with their gender identity in public schools. The three-page letter issued by the Department of Justice and the Department of Education rescinded a May 2016 guidance note from the Obama administration, in which transgender students were protected from discrimination on the basis of gender identity. The 2016 Obama guidance note had instructed education providers to interpret sex discrimination to include ‘discrimination based on a student’s gender identity,’ and had made it a condition for schools receiving Federal funds to ‘not treat a transgender student differently from the way it treats other students of the same gender identity.’ The Trump letter queried the legal basis for such an interpretation citing pending litigation, and instead deferred to local school districts and States to establish their own bathroom access policies.

Access to sex-segregated bathrooms has emerged as the new battleground for LGBT rights in America. Immediately following the Obama administration’s guidance note in May 2016, twelve States challenged its legality and an injunction was granted on 21 August 2016 by a Federal Court in Texas halting its implementation. Currently, twelve States have introduced draft legislation to restrict transgenders access to sex-segregated restrooms, locker rooms and other facilities by defining ‘gender’ as biological sex alone. The Supreme Court will hear a case on this issue later this month, involving a seventeen-year-old transgender student from Virginia, Gavin Grimm, who was barred from using the boys bathroom in his Gloucester County high school in the fall of 2014. Grimm sued the Gloucester County Education Board and is now asking the Supreme Court to decide whether he has the right to use bathrooms and locker rooms corresponding to his gender identity. Legally, the Court must determine whether the prohibition against ‘sex discrimination’ under Title IX of the Education Amendment (1972) Act should be interpreted to include discrimination on the basis of gender.  

Putting aside for a moment these legal battles, an important yet overlooked issue in this debate is the role that discrimination can play in undermining transgender children’s agency over their gender identity. Recognizing a child’s evolving capacity and agency is the cornerstone of children’s rights. It is codified under the UN Convention on the Rights of the Child in article 5 and article 14 and embedded in article 12. The UN Committee on the Rights of the Child has defined ‘evolving capacities as an enabling principle that addresses the process of maturation and learning through which children progressively acquire competencies, understanding and increasing levels of agency to take responsibility and exercise their rights.’ Though the United States of America remains the one country in the world not bound by the treaty provisions of the UN CRC, the principles of evolving capacity and agency are not without resonance in domestic law in America. According to leading US child rights scholar Barbara Bennett Woodhouse in Hidden in Plain Sight, the agency of children has long been recognized and acted upon in American history, and it continues to be acknowledged in jurisprudence and under some Federal and State laws.

The intersection between discrimination and agency, indeed the role that discrimination can play in undermining an adolescent’s right to exercise control over his or her own gender identity has not been fully explored or contemplated in the battle over bathroom access for transgender students in America. For a transgender adolescent, this is not just about using a bathroom, or even being protected from harassment and bullying at school (though these are obviously important concerns), it is about something more visceral: the right to exercise control over one’s very identity – to be who you want to be – and to have that identity recognized and supported by your community and peers. 

A law or policy that constrains an adolescent’s transgender identity or questions the veracity of such a gender identity is effectively saying to a transgender child that your right to be who you are is not acceptable, and thus not recognized or supported by your community and peers. For a transgender child, the act of asserting their gender identity is likely a decision fraught with emotion, requiring enormous courage and strength. For many adolescents, it is the first time they are coming to terms with their gender identity, while for others, it means standing up to family members and challenging values within their religion or community. A law or policy that does not recognize these challenges can have a devastating impact on a child – not only in respect of their emotional well-being but also in regards to their long-term development.

The suicide rate among transgender persons is nine times higher than in the general population of America. Almost two thirds (63%) of respondents in a recent national Transgender Study admitted to attempting suicide at least once in their lives prior to reaching 18 years of age (34% attempted suicide under the age of 13 years while 39% were between 14 and 17 years). Seventy-seven per cent of transgender students who attempted to openly express their gender identity in school reported being victims of abuse, violence or harassment: 54 per cent were subjected to verbal harassment; 52 per cent were actively prevented from expressing their gender identity; 24 per cent were physically attacked; and 17 per cent had to leave school as a result of the mistreatment they faced.

As the battle over bathroom access rages on in America, it is important that judges and lawmakers do not relegate this complex issue to a legal debate on a singular point of law. Of course, it is necessary and worthwhile to clarify whether ‘sex discrimination’ should include discrimination on the basis of gender. However, the interaction between discrimination and agency must also be better acknowledged and further explored. The real-life consequences that transgender adolescents are forced to face every day when they are undermined in their agency to control their gender identity deserves more discourse. All too often, transgender adolescents are framed as victims of discrimination, harassment and violence, rather than active agents forging their own unique gender identity. If we want to end the mistreatment of transgender adolescents, more needs to be done to understand, respect and recognize the courage of transgender youth and the role that agency can play in empowering these children to assert control over their own gender identities. 

1 Comment

Christa Tobler
Posted by Christa Tobler on March 16, 2017 at 13:12

In my opinion, the legal issue is not even all that complicated: once you have recognised that there is more than just two sexes (female and male), it is not very difficult to understand that the term “sex” or “gender” in non-discrimination law includes more as well. Some people simply deny accepting difficult realities ...

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