Visible Man: Prove it! Bathroom access denied

Jamison Green offers a man's POV on life in the trans lane. Opinion, advice, and information from an internationally respected leader of the FTM community.

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In an eastern U.S. city, a transman in an industrial environment is told he cannot use the men's room at work because he was born with a female body. In the Minnesota State Supreme Court, a transwoman is told she cannot use the women's room because she did not offer sufficient proof that she is female.

The bathroom issue is one of the most monumental problems for transpeople who are trying to transition on the job, or who simply possess physical features that cause others to question their gender. I don't know what it is like for a nontrans man who has feminine characteristics, but certainly nontrans women with masculine characteristics (and pre- or early-transition transmen) know very well that when they are challenged by women for their right to use the women's room they usually do not have to discuss their genitals to prove they are entitled to use it.

In Minnesota, back in 1997, co-workers clocked Julienne Goins as a transsexual woman, and someone complained to management at the law book publisher (West Group) where they worked. The battle was fought in the courts. First, the trial court dismissed Goins' claim that the employer's designation of restrooms based upon "biological gender" created a hostile work environment and constituted discrimination on the basis of sexual orientation under the Minnesota Human Rights Act (which includes transpeople under the definition of "sexual orientation"). That judgment was reversed on appeal, and ultimately the Supreme Court concluded that "Goins had not established a factual basis for the hostile work environment claim" and "an employer's designation of employee restroom use based on biological gender is not sexual orientation discrimination in violation of the MHRA."

This case was argued based upon fine points of the language of the statute, in conjunction with historical interpretations of law. The MHRA prohibits sexual orientation discrimination in the workplace, and defines sexual orientation to include "having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness." Goins' discrimination claim was based on her self-image as a woman "that is or is perceived to be inconsistent with her biological gender." Logically, in making this assertion, she claimed to have a biological gender that is male. She also alleged disparate treatment as the cause of the employment discrimination. She claimed that West's policy of designating restroom use based on "biological gender" violated the MHRA and asserted that restroom designation should be based upon "self-image of gender." The Supreme Court disagreed. Boom. That's their opinion, and they have the last word, and one Justice goes so far as to note that "the record is not clear whether Goins was ever denied access to the men's restroom" -- a legal test for the discrimination claim that could trump Juli's case all by itself.

Juli Goins never appeared before the Minnesota Supreme Court. They never saw what she looks like. When Juli's use of the women's room alarmed some co-workers, management decided Juli should use the single-occupancy restroom in the building where she worked (but on another floor), or another single-occupancy restroom in another building, to alleviate the conflict between Goins and female coworkers who were concerned "about sharing their restroom with a male." Juli disregarded West's restroom policy and continued to use the women's restroom closest to her workstation, and in November 1997 she was threatened with disciplinary action if she persisted in this behavior. In spite of this, she was offered a promotion and substantial salary increase in January 1998, but she resigned and filed the originaldiscrimination claim against West in district court. Nontrans people don't look too kindly upon transpeople who seem to look gift horses in the mouth, and on the surface it looks like Juli was asking for trouble. We have no idea how much she suffered.

When you go up against the law, it's best not to try to get clever with interpretation of language in statutes. Unfortunately, it seems to me, Juli's acknowledgment that her "biological gender" was male becomes the crux of her problem. Transpeople need to understand that the definition of "biological gender" (if that is the language they are forced by statute to use) must conflict with "biological sex," and then convince courts of the primacy of gender over sex if they are to prevail in attempts to redefine the language of gender equality. And as anti-essentialist as many of us would like to be in establishing our right to our own identities, we are going to have to employ the power of science in order to change the law.

The good news is that both science and the law are mutable. Right now, the bad news is that in an adversarial situation, if known, clockable, or out transpeople believe they are entitled to use any particular bathroom, all they have to do is prove it. It will take some time to come up with the right arguments, the science to validate them and the laws to reinforce them, but we will do it sooner or later. In the meantime, I guess we'll have to learn to hold it.