So Grimm was barred from the boys’ bathroom and told to choose between the girls’ facilities or a new unisex restroom. For some students, the unisex alternative might have sufficed. To Grimm, it served as a daily reminder of stigma and exclusion. If you scoff, remember what it felt like to be an adolescent, craving acceptance from your peers.
Grimm sued, claiming that the policy violated Title IX, the federal law barring educational institutions from discriminating on the basis of sex. But what does sex mean in this context? Is it determined exclusively by reference to genitalia (as the lower court concluded) or, more broadly, by what the student understands himself or herself to be?
The Education Department has said schools “generally must treat transgender students consistent with their gender identity.” The appeals court, splitting 2-to-1, said that interpretation was entitled to deference, and sent Grimm’s case back to the lower court, which also has before it Grimm’s claim that his constitutional rights were violated.
That seems like the right outcome — which puts me, at least on this issue, with Donald Trump. Commenting on North Carolina’s offensive — and, under the 4th Circuit decision, legally vulnerable — bathroom law, Trump said Thursday that people should “use the bathroom they feel is appropriate.”
Indeed. Just do your business. No peeking over urinal dividers or under stalls to check on your neighbor’s biological equipment. What invasion of privacy? What harm?
It’s complicated
Here’s the more complicated part. Although Grimm disavowed interest in using the boys’ locker room, the Education Department’s reasoning applies in that setting too. Last year, the department intervened on behalf of a transgender Illinois girl who said she wanted equal access to the girls’ locker room, and not to be relegated to a separate facility. She wanted — as a mom, my heart goes out to her — “to be a girl like every other girl.”
The implications of requiring equal treatment lead to some challenging situations. If I had a transgender daughter about to start college, I’d want her to have the same opportunity as every freshman to bond with her roommate. But if I were the mother of that roommate — if my daughter called and said her roommate turned out to be a transgender girl — I have to admit I’d be unnerved. Even for people of goodwill, the emergence of transgender rights is going to take some adjusting.
And then there is Ted Cruz, who sunk, typically, to lowest-common-denominator ugliness. “Grown adult men — strangers — should not be alone in a bathroom with little girls,” he said, seizing on Trump’s comments. As if being transgender is equivalent to a propensity to prey on children.
The country needs a mature discussion of this complex issue, and how to accommodate competing needs. Instead, the campaign drives candidates like Cruz to pander to the worst instincts of the ignorant, the basest of the base.