Dangers in the Bathroom Have Nothing to Do With Gender

Dennis Hastert, right, outside the U.S. Capitol, March 25, 1999. Rep. J.C. Watts (R-Okla.) looks on. The author argues that the single-sex nature of their all-male locker room did nothing to protect the boys abused by Hastert. Reuters

This article first appeared on the Justice site.

Bathrooms have been at the center of several recent controversies—most notably, of course, involving North Carolina's HB2, an unconstitutional law that prevents transgender individuals from using bathrooms that align with their gender identity at any public school or university and in any governmental building.

This law (analyzed in detail here) will make life difficult for an already disadvantaged group and has spurred protests and boycotts and will cost the state millions and millions of dollars in revenue.

Lawmakers perhaps miscalculated the cost of open, state-sanctioned bigotry, especially in the digital age when the boycotts reverberate as they are tracked and updated in real time. (This site does some of that work, confirming boycotts by entities as diverse as TIAA, Cirque du Soleil and Pearl Jam.)

Mississippi, a state that claims tourism as one of its biggest industries, apparently did not account for the cost of backlash before it adopted a similar law a few weeks later.

Bathrooms re-emerged this week as a center point of two stories, with oddly juxtaposed visions their significance in society.

The U.S. Court of Appeals for the 4th Circuit issued a ruling in a case in which a transgender high school boy brought suit challenging his school district's refusal to allow him to use the locker rooms and bathrooms designated for boys because he was born a girl.

The majority ruled in the boy's favor, reversing a ruling by the lower court that had refused to follow a federal agency interpretation of Title IX, which says schools must allow students to use the bathroom aligned with their gender identity.

That ruling—and its implications for North Carolina, which is in the 4th Circuit and bound by this decision—will be discussed below. But an interesting side note is the bathroom imagery in the dissenting opinion—written by a judge, Paul Niemeyer, who argued that the school district was free to restrict bathroom access based on biological sex.

Judge Niemeyer writes about the sanctity of the single-sex bathroom:

Across societies and throughout history, it has been commonplace and universally accepted to separate public restrooms, locker rooms, and shower facilities on the basis of biological sex in order to address privacy and safety concerns arising from the biological differences between males and females.

An individual has a legitimate and important interest in bodily privacy such that his or her nude or partially nude body, genitalia, and other private parts are not exposed to persons of the opposite biological sex. Indeed, courts have consistently recognized that the need for such privacy is inherent in the nature and dignity of humankind.…

Thus, Title IX's allowance for the separation, based on sex, of living facilities, restrooms, locker rooms and shower facilities rests on the universally accepted concern for bodily privacy that is founded on the biological differences between the sexes. This privacy concern is also linked to safety concerns that could arise from sexual responses prompted by students' exposure to the private body parts of students of the other biological sex.

It's hard to engage in a meaningful argument about whether single-sex bathrooms are or are not "inherent in the nature and dignity of humankind." But it is not hard to suggest that single-sex bathrooms are neither necessary nor sufficient to protect privacy. That seems all the more apparent, as we hear about bathrooms this week in an entirely different context.

Former Speaker of the House Dennis Hastert arrived in court last week to be sentenced for federal banking crimes, to which he pleaded guilty. But the real horror was the reason for violating banking law—to avoid detection of a payoff to a former wrestling student he had molested while working as a wrestling coach.

Details of several instances of inappropriate sexual contact with minors have been released by prosecutors, though Hastert is immune from prosecution on these counts because the statute of limitations ran out long ago.

Hastert's story is about a lot of things—abuse of authority (he sexually abused minors he coached in wrestling), political hypocrisy (an "outspoken advocate for severe punishment of anyone convicted of abusing minors," according to The New York Times), the misuse of a public position (he used funds and power to wage war on Title IX because he blamed it for hurting his beloved sport of wrestling)—but it is also about bathrooms.

Among the details released by prosecutors was this: Hastert set up a reclining chair in a locker room where he could sit and watch his wrestling team in the showers.

And he didn't just look, he touched. He intentionally touched the genitals or performed oral sex on at least four minors. (He acknowledged his "transgressions," which he "profoundly" regrets, but says he cannot remember whether he led one boy from the shower to the massage table, where Hastert allegedly performed oral sex on him.)

For Hastert, the all-boy bathroom was just a room with a view. (His actions also make it hard to understand the 41 letters urging the sentencing judge to show him leniency.)

Certainly the single-sex nature of the locker room did nothing to protect those boys. Now, one man's misconduct is not a basis for generalizing about whether single-sex bathrooms are or are not "inherent in the nature and dignity of humankind." (Although bathrooms have also figured at the center of other sexual abuse and invasion of privacy scandals—Jerry Sandusky used a Penn State football locker room as a hunting ground for young boys, the "charitable" beneficiaries of a program to help at-risk boys; he was convicted of 45 counts of rape and sexual assault, including one count for the anal rape of a 10-year-old boy in the locker room shower in the presence of another coach.)

But neither is an unsupportable platitude about the sanctity of the single-sex bathroom and the safety it provides—nor a blanket assertion about the dangers of opening their doors to students of a different biological sex, but same gender identity.

(Maxine Eichner writes here about the two lies used to justify HB2 under a safety rationale—that transgender women are likely to assault other women in the bathroom or that men are likely to pretend to be transgender in order to gain access to the girls' restrooms, where they will assault them.)

Contrasting images of the bathroom—a quiet sanctuary where dignity resides or a place of predation and abuse—can be important in the court of public opinion. It seems clear that North Carolina is on the losing end of this battle, having failed to convince many people that its actions were designed to promote safety and protection rather than bigotry and discrimination.

But courts of law do not have the freedom to traffic in rhetorical images or platitudes—they are required, in analyzing the validity of a state statute, to decide whether the law complies with federal statutory and constitutional mandates. As I have written about here, North Carolina's HB2 is patently unconstitutional, and lawsuits challenging it on constitutional grounds have already been filed.

But HB2 also has a Title IX problem to the extent it prevents public schools (or private colleges that receive any federal funding) from allowing transgender students to use the bathroom aligned with their gender identity.

That problem just got much bigger with the 4th Circuit's decision in G.G. v. Gloucester County School Board, in which it held that the lower court was wrong to dismiss the complaint by a transgender boy about his school's bathroom policy and was entitled to a preliminary injunction blocking enforcement of the policy pending trial. The 4th Circuit encompasses Maryland, North Carolina, South Carolina, Virginia, and West Virginia, and its rulings are binding on federal district courts (and state courts) in each of those states.

The case arises out of the experience of a transgender boy who seeks to use the boys' restrooms at his high school. He has undergone hormone therapy and lives life full-time as a male, but has not undergone sex reassignment surgery. Although he initially was given approval by the school administration to do so, the local school board adopted a policy banning him from those restrooms.

At a meeting to consider the proposed restrictions, people in attendance said awful things. Many intentionally referred to him as a "young lady" despite his clear male identity; some referred to him as a "freak"; and one compared him to a person "who thinks he is a dog and wants to urinate on fire hydrants."

Although it was likely clear to board members that he planned to use a toilet rather than a fire hydrant, the board voted 6-1 to approve the restrictive policy. And they did this despite evidence that he had been stigmatized by being required to use single-user bathrooms and had developed many urinary tract infections from his refusal to endure that harm during the school day.

The validity of the school board's action at this stage of the litigation turns on whether Title IX permits schools to restrict bathroom access by biological sex. (The boy has a pending constitutional challenge as well, but it has not yet been ruled on by the trial court and is thus not yet on appeal.)

Title IX of the Education Amendments of 1972 is a federal statute that prohibits recipients of federal funds from discriminating on the basis of sex in their educational programs and activities. It states that "No person in the United States shall, on the basis of sex, be…subjected to discrimination under any education program or activity receiving Federal financial assistance.…"

This statute has had broad-ranging effect, and has been used to challenge gender inequity in a variety of contexts, including school admissions, testing and scholarships; the treatment of pregnant and parenting students; school athletics; and sexual harassment by teachers and coaches, as well as by other students and third parties.

Despite its general mandate of nondiscrimination, which usually encompasses a rule of nonsegregation (separate but equal does not usually pass muster under anti-discrimination laws), Title IX regulations expressly permit sex segregation in several instances. Most obviously, it permits athletic teams to be segregated by sex and grants cross-tryout rights only in very limited circumstances. It also grandfathered in traditionally single-sex private colleges (e.g., schools like Wellesley and Smith).

There is also a regulation on restrooms and locker rooms. The provision, 34 C.F.R. § 106.33 permits the provision of "separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students on one sex shall be comparable to such facilities for students of the other sex." Separate but equal in this context is legal.

In 2015, the Department of Education's Office for Civil Rights (the body charged with implementing and enforcing Title IX) issued an opinion letter providing as follows: "When a school elects to separate or treat students differently on the basis of sex…a school generally must treat transgender students consistent with their gender identity."

The district court, however, dismissed G.G.'s Title IX claim on the theory that Title IX prohibits only sex discrimination—and not sexual orientation or gender identity discrimination. The court refused to defer to the agency interpretation of Title IX captured in the 2015 letter opinion, finding that it was not entitled to deference, and that G.G. was not entitled to a preliminary injunction because he did not make a showing of likely success on the merits.

On appeal, the 4th Circuit, in a 2-1 opinion, reinstated G.G.'s Title IX claim. Its ruling was straightforward and correct.

First, it concluded that the OCR letter opinion was entitled to deference under the standard set forth by the Supreme Court in Auer v. Robbins (1997). Agency interpretations are entitled to such deference if they reflect "the agency's fair and considered judgment on the matter in question." They do not need to be "well-settled or long-standing to be entitled to deference."

The letter opinion was neither a post hoc rationalization by OCR or in service of a convenient litigation position. It was a reasonable interpretation of Title IX. Although the original Title IX regulations do explicitly allow sex-restricted bathrooms, they do not explicitly state that schools can also decide which sex designation a student must use.

The court cited even basic dictionary definitions from the era when the original regulation was passed to show that sex has always been understood to be representative of a sum of factors rather than a simple determination of sex organs or chromosomes. Thus, the regulation that says bathrooms can be segregated by sex is ambiguous as to whether schools have discretion to restrict bathroom access solely on the basis of biological or birth sex.

As the appellate court wrote, "[w]e conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board's reading—determining maleness or femaleness with reference exclusively to genitalia—and the Department's interpretation—determining maleness or femaleness with reference to gender identity."

It further concluded that OCR's interpretation is "permitted by the varying physical, psychological, and social aspects…included in the term sex.

The majority also concluded that the district court had applied evidentiary standards to G.G.'s petition for a preliminary injunction that were too strict—and inconsistent with case law. On remand, it directed the court to reconsider his request for a preliminary injunction with the appropriate standard.

G.G. also requested on appeal that his case should be reassigned to a new trial judge, given his prior judge's strong, pre-existing views on transgender identity and behavior.

The judge "expressed skepticism that medical science supported the proposition that one could develop a urinary tract infection from withholding urine too long"; that gender dysphoria is a "mental disorder"; and that G.G. wants to be a boy, but isn't. The majority refused, though, concluding that the trial court had not clearly indicated it "would refuse to consider and credit contrary evidence."


As discussed above, Judge Niemeyer dissented, relying primarily on his view that the single-sex bathroom is a sacred place. The many cases of single-sex hazing, sexual abuse by teachers, coaches and team members and invasions of privacy that have occurred despite single-sex bathrooms (e.g., discreet cameras or peepholes used by boys to peer into girls' locker rooms) tell a different story.

Joanna L. Grossman is the Sidney and Walter Siben distinguished professor of family law at Hofstra University. She is the co-author of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum Sr. Prize for best book in American legal history and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009).