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by Marc Jampole
THE LATEST Trump-GOP assault on human and civil rights has arrived: the rollback of Obama administration rules that have allowed transgender students to use the schools’ public bathrooms of the sex with which they identify.
Legal arguments on the issue seem always to reduce to the question of whose rights are more important -- the transgender person’s right to use the bathroom of choice or the rights of those offended to think that a person of another sex might be in the bathroom with them. I was originally on the wrong side of this issue, until a close gay friend of mine pointed out the danger to transgenders who want to appear in public looking like the sex with which they identify and thus risk a beating or worse if they use a bathroom that corresponds to the sex on their birth certificate. Moreover, when we consider that all pertinent female business is conducted in stalls — i.e., without significant visual contact with others — we realize that the “harm” caused to those others is imaginary in all senses of the word, whereas the harm suffered potentially by all trans people is very real.
Making trangenders use the bathroom of the sex on their birth certificates thrusts on them a decision between four terrible choices, all informed by rejection and fear: 1) Appear in public as what you are and do not use the bathroom, no matter how badly you have to go; 2) Appear in public as what you are, use the bathroom and risk harm; 3) Appear in public “in hiding” by dressing like the sex on your birth certificate; 4) Don’t go out in public. By contrast, no such terrible decision is thrust upon those who object to trans people using the bathroom of the sex with which they identify. First of all, it is very unlikely they will encounter a transgender individual, since so relatively few exist. Secondly, if they do encounter one wherever the location, they won’t know the person is transgender for certain, even if they suspect or think they know. For the most part, the offended party has to be consciously looking to be offended and consciously inferring something offensive.
A “who’s harmed” analysis thus falls heavily on the side of protecting the rights of transgenders.
At the heart of the bathroom issue, however, is the basic meaning of human dignity in our society. The dictionary meaning of dignity is the quality of being worth something, of being honored and esteemed. In other words, dignity is intricately tied to society and to interactions between people. Dignity is the feeling we have that others respect us as free and individual, consider our feelings, think we are law-abiding, are not laughing at us, and do not think we have committed a social mistake.
ALL DIGNITY, in the bathroom and elsewhere, is mostly a social construct. In some societies, people have no problem doing their business in the open in front of others. And even in our society, we have a sliding scale of what we’ll do and who we’ll do it in front of. Things that are okay in front of a sibling or lover might not be okay in front of strangers. What’s okay at age 5 may be taboo at 15. We may temporarily suspend our definition of bathroom dignity when in the armed forces or on a camping trip. Lyndon Johnson sat on the can with the door open talking to aides as a sign of his power over others.
As a society, Americans put a price tag on bathroom dignity when we decided not to make public bathrooms a series of small water closets or a big room with a number of completely closed off stalls. These private rooms would enable public facilities to become unisex. In both Spain and the Netherlands, stalls in public bathrooms are almost everywhere individual rooms with real locks and even door knobs; and when they are mere stalls, the walls and doors extend from floor to ceiling. Even in the few public bathrooms in which there is space at the top or the bottom of stalls, it is never more than an inch or so. In both countries, the toilets are always well stocked and clean, even in bus and train stations. Spanish and Dutch societies display respect for the individual reflected in the privacy they give everyone to do what is a very private action for most people. Contrast with America, where high school students in many public urban high schools today have to sit on the porcelain throne in a low-walled, doorless stall.
In America, we would rather cut corners, save a little money and provide less private public bathroom facilities. If Americans valued dignity in the bathroom as much as the Spanish and Dutch do, the challenge of accommodating the bathroom needs of transgenders in public places wouldn’t exist.
A failure to value individual human dignity results in placing the hypothetical rights of those offended by the thought of seeing a trans person in the bathroom over the real rights of transgenders, who will certainly lose dignity by looking like a woman in the men’s room or a man in the women’s room. They may also lose a pound of flesh or a few teeth, as well. Safety issues aside, a thirst for dignity is at the heart of the desire of the transgendered to use the bathroom of the sex with which they identify.
By contrast, the emotional component of being offended by a trans person in the bathroom is anger, which may be caused by a variety of factors: because the trans person is different, because the viewer’s religious sensitivities have been offended, or perhaps as a reaction to her her-his own confused sexual feelings that contradict what her-his role models say is morally right.
Thus, by not allowing trans people to use the bathroom they want to use, the Trump administration has said it values the anger of some over the dignity of others, which is par for the course for Trumpty-Dumpty. It’s worth noting that lots of thinkers have proposed the idea that if one group is denied dignity or the concepts associated with dignity by a society, everyone in effect is denied it. No one has ever said that about being denied the right to be angry, although the right to express anger in legal, nonviolent ways is protected under the First Amendment. It’s in the nature of a free society to favor the rights of those who are seen as offensive more than those who take offense.
Let’s speak truth to power. Those who want to overturn the Obama transgender rule are doing so for so-called religious or moral reasons. They want to impose their religious value system on the rest of the country. At heart, they oppose all forms of sexuality except heterosexual relations, and those should preferably be between a man and woman who are married to each other. If they can’t outlaw transgenders, they want to chase them into dark corners, not only to render them invisible but also to make the lives of the transgendered harder than they already are. Moreover, opposition to transgender rights serves as wedge for a slew of other prejudices -– against gay marriage, other LGBTQ rights, abortion, birth control, and sexual self-determination.
Marc Jampole is author of Music from Words (Bellday Books, for sale at our Pushcart). A former television reporter, he is a member of the Jewish Currents editorial board, blogs regularly (“OpEdge”) at our website, and writes frequently for our magazine.