Many Reported Instances, Even Absent LGBT Statutes

WASHINGTON, D.C. (November 5, 2015): Voters in Houston, Texas, on Monday overwhelmingly defeated an ordinance designed to prevent gay, bisexual, and transgender people from being denied jobs or admissions to public places, primarily over what was called the “bathroom issue.”

This occurred in large part because the backers of the ordinance did not recognize the very real fear of permitting men to use female restrooms, perhaps thinking that voters with such concerns were either homophobes or religious fanatics, says public interest law professor John Banzhaf, who has opposed discrimination based on both sexual orientation and sexual identity, and won more than 100 legal actions successfully attacking illegal discrimination on many different grounds.

Houston's Man-In-Restroom Fears Are Valid

“A bit of realistic thinking leading to a tiny change in the ordinance probably would have saved it.  Instead, all of those protections went up in flames because of voters’ real concerns that men would then be free to walk into and loiter inside women’s restrooms.  As a result, young girls as well as women could suffer not only an invasion of their sexual privacy, but also the very real risk of physical harm including rape if the men overpowered them when they were literally caught with their pants down,” said Banzhaf.

Even women who shared communal restrooms with men in coed dorms, and are far less concerned about an invasion of their sexual privacy than their mothers or grandmothers, nevertheless would be worried about entering a female restroom and finding a person with a penis already there.

Houston’s bathroom issues – What would happen if the ordinance had passed

Today, if it happens in Houston, they can call the police and have the person arrested.  But if the ordinance had passed, they would have no choice but to partially undress, and hope that the person with a penis does not threaten them physically and/or sexually in the semi-private confines of the restroom.

The problem is obviously complicated by the fact that the ordinance – like many similar ordinances, and also a recent federal ruling – would permit any male who claimed to be transgender to use a female restroom without any need to provide proof of that condition, and even if he looked and appeared like any other heterosexual male rather than as a woman.

Many who expressed those concerns were derided by supporters of the ordinance as scare mongers or homophobes, but the media is full of reported instances where men sought to – or indeed did – enter female restrooms for perverted illegal purposes. [See examples later]

In most such instances, the police were able to arrest the person – whether dressed in men’s or women’s clothing – because the person had no right to be there.  But in jurisdictions where so-called discrimination against transgender people is prohibited, the police might not be able to take any action, and indeed might be subject to law suits if they even made routine inquiries.

Ironically, requiring persons with a penis to use public restroom facilities set aside for persons with penises may not constitute true discrimination, or at least it represents a very different type of discrimination than what is typically protected against regarding race, religion, or even sexual orientation.

Many would agree that someone should not be denied a job, entry to a place of public accommodation, etc. just because they are Black, Jewish, or gay.  But this ordinance goes far beyond saying that one cannot deny a job or admission to a transsexual person.

Rather, the ordinance says that businesses must make an affirmative and very controversial accommodation to the views of transgender people, even if it means embarrassment, and a major invasion of privacy, to many if not most females, including even small children.

Blacks, Jews, and even gays do not require or even seek separate restrooms or other different treatment – they ask simply to be treated like everyone else.  But transgender people demand a special accommodation, not available to others, because of how they feel, and regardless of how typical women might feel about being forced to share a restroom – and perform bodily functions – with a person with a penis.

As an example of the unusual nature of their request, and to indicate that it may be unfair to another class of people, one should consider male transvestites – otherwise sometimes known as cross-dressers – whom Wikipedia says are often “heterosexual males (that is, male-bodied, male-identified, gynephilic persons) who wear traditionally feminine clothing.”  Certainly males so attired would feel awkward in a male restroom, and might even be subject to the same type of physical violence that transgender females face.

Yet because their strong desire to dress and act like women does not follow from any disparity regarding their sexual identity, they would not enjoy any protection under the proposed ordinance, and would still have to use the men’s restrooms or face arrest.

One may reasonably ask why this novel accommodation – which arguably intrudes on the privacy of many women – should be extended to anatomical males who have a compulsion to act and be like women, but not to anatomical males who may feel a compulsion which is just as strong to dress like women although they still think of themselves as male.

If the issue is simply one of nomenclature – that persons who are anatomically male but believe themselves to be women – should not be forced to use a restroom labeled “men,” perhaps the answer is simply a more candid and more precise definition of restrooms. Public restrooms could be designated either for penis-people (regardless of sexual orientation, sexual identity, desire as cross-dressers to be attired in typical female clothing etc.) and for vagina-people (again regardless of other factors).

Under such an arrangement, a person with a penis would simply use the penis-people restroom, and would not have to identify as male, female, cisgender, or any other designation.  If those terms are seen as too graphic, especially for children, one could simply use the cute names already given to restrooms in some public places: “POINTERS” and “SETTERS.”

Here are only a small sample of headlines which show that males seeking to engage in improper acts in female restrooms are far from fanciful, even when entering such locations would be illegal, and not protected by an ordinance such as the one just defeated in Houston.

CROSS-DRESSING PEEPER INFILTRATES CAL WOMEN’S LOCKER ROOM: “A man dressed as a woman has been spotted peeping at females and photographing them in a UC Berkeley locker room.” East Bay Express [10/12/10]

NIGHTCLUB SUED BY MAN ASSAULTED IN WOMEN’S RESTROOM: “A cross-dressing man claims another transvestite bit off the tip of his nose during an assault in a restroom at popular south Omaha nightspot. That club is now being sued.” WOWT News, Omaha [06/02/10]

POLICE: CROSS-DRESSING PEEPING TOM ARRESTED AGAIN: “GWINNETT COUNTY, Ga. – Police said a cross-dressing man accused of being a peeping Tom spent Tuesday night in jail.” WSB-TV [11/24/10]

TEEN COERCED INTO FOOD COURT BATHROOM FOR SEX: COPS: “Police said Isaiah Johnson, 20, of Stamford, and ‘two other males dressed as females in the area of Veteran’s Park Bus stop’ coerced the teenage boy into the bathroom of the food court of the Stamford mall on April 26, where a sexual encounter took place.” NBC Conn. [06/08/11]

POLICE: MAN IN BRA AND WIG FOUND IN WOMEN’S BATHROOM: “A man wearing a bra and wig was arrested Friday after he was spotted in a women’s bathroom at Everett Community College, police said. . . . An investigation found that the suspect had gone into the rest room while two women were inside, according to a police report.” SeattlePi [03/16/12]

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf