Transgender Restroom Rule Blocked – Two Simple Alternatives 

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Transgender Restroom Rule Blocked – Two Simple Alternatives; Require “Reasonable Accommodation” or Multi-User All-Gender Restrooms

Transgender Restroom Rule Blocked

WASHINGTON, D.C. (July 18, 2022) – Federal judge Charles Atchley Jr., a Trump appointee, has blocked a Biden administrative directive which would have permitted boys “who identify as girls” to use restrooms reserved for girls, but there are at least two simple alternatives which should satisfy the needs of both sides in this long-simmering debate, says public interest law professor John Banzhaf.

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Many of their parents, as well as the female students themselves, argue forcefully that permitting anatomical males to use their restrooms is a serious invasion of their privacy - a separation of the sexes for purposes of elimination which has been established for more than 100 years - and makes it easier for boys to sexually molest them, says Banzhaf.

In stark contrast, LGBTU+ advocates argue that, because it is wrong to force boys who identify as girls to use a restroom which contradicts their sexual identity, they should be permitted to use any female restroom they desire.

But Banzhaf, who has won over 100 sex discrimination legal actions, suggests that there are at least two ways to accommodate the needs of both without being forced to reject the needs of either side.

Reasonable Accommodation

The first solution is to require that - as with persons with disabilities and those with strongly held religious beliefs, only a "reasonable accommodation" must be made to protect their rights.

The second solution - already in use and universally accepted at his law school - is to convert multi-user restrooms (e.g., GWU's has three urinals and an enclosed toilet stall) previously reserved for male students into a multi-user all-gender restroom open to all students regardless of anatomy or gender identity.

Legislators should recognize that virtually no legal right - including even those fundamental ones protected by the First Amendment - is absolute and trumps all others, says Banzhaf, who notes that statutes protecting transgender individuals, persons with disabilities, and and those with strong religious beliefs all requite only a reasonable accommodation, not a clear and unfettered response to all interests and demands.

Thus, people with strong religious beliefs are protected under Title VII by requiring that there be a "reasonable accommodation" to them. A similar scope of protection is provided by various Religious Freedom Protection Acts [RFPA] which are designed to protect religious interests. Under them, deeply religious persons are not granted absolute freedom to practice their religious identity and beliefs no matter what the consequences; rather, they are entitled to no more than a reasonable accommodation to them.

As an even better example, a similar reasonable accommodation standard is applied to protecting the interests of those with disabilities under the Americans With Disabilities Act [ADA]; and the weight of legal authority today recognizes that gender dysphoria - like requiring the use of a wheelchair - is a protected disability under federal disability rights laws.

Thus, wheelchair users' fundamental right to enter and use a building is protected, but handicapped students do not have an absolute right to use each and every exit or entrance which may be available to others. Instead, the school need only make a reasonable number of entrances accessible to wheelchair users, notes Banzhaf.

Similarly, a school does not have to provide wheelchair access to all classrooms to adequately protect the rights of students in wheelchairs if there are a sufficient number of wheelchair-accessible classrooms to accommodate the small percentage of wheelchair-using students who do need them.

Using these examples as analogies, courts may be able to fashion reasonable accommodations for those with gender dysphoria, while at the same time making a reasonable accommodation for those with often contradictory religious views or other concerns, including even sexual privacy.

For example, using the same standard and by way of analogy, providing enough single-user restrooms to reasonably satisfy the requirements of the tiny percentage of students who are transgender might adequately protect their rights without opening up all female restrooms to anatomical males who might simply claim to feel female. Similar reasonable accommodations - a balancing of different interests - may well be possible in other LGBTQ+ cases, says Banzhaf.

All-Gender Restroom

The second solution is simply to change signs now reading 'MEN'S RESTROOM" to "ALL-GENDER RESTROOM."

To overcome the twin problems of modesty and safety required to protect anatomical females, while at the same time not requiring transgender students to reveal their biological sex, or to use a restroom inconsistent with their new gender, GWU adopted a simple solution which may be unique, at least on a major university campus.

For years the Law School had, at each end of its moot courtroom in which many major events are held (it seats about 100), one restroom for males, and another equal size restroom for females. Then, several years ago, it simply changed the sign on the restroom previously labeled "Men" to "All-Gender," while leaving the nearby similar-sized restroom labeled "Women" unchanged.

So the newly-designated all-gender restroom - which contains three urinals, one toilet inside a metal stall, and two sinks - remained available for male students who still largely use the urinals. However, both M2F and F2M students could use the toilet with its privacy stall without revealing any portion of their anatomy, or being forced to use a restroom contrary to - or inconsistent with - their gender identity (as male, female, non-binary, cross-gender, etc.).

Male students seem not to object to any invasion of their privacy or bodily modesty which might arise from other users viewing their backs while standing at the urinals, nor do they have any serious concerns about possibly being sexually assaulted by users who might be anatomically female, M2F, or even F2M.

Since virtually all other multi-user restrooms in public venues tend to be paired - one labeled "male," and a nearby one labeled "female" - the simple step of relabeling each of the "male" restrooms as "all-gender," and making no other changes, could solve the transgender problem throughout an entire building or school, since everyone could now use a nearby all-gender restroom if they desire.

Indeed, this concept seemed to work so well that Fox News reported on it in a piece entitled "Could Male, Female Restrooms Be a Thing of the Past? GWU Tries Out 'All-gender' Restroom."

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